AGREEMENT AND PLAN OF MERGER by and among INNOVATIVE CONSUMER PRODUCTS, INC. WSG ACQUSITION, INC. and WORLD SERIES OF GOLF, INC.
by
and
among
WSG
ACQUSITION, INC.
and
WORLD
SERIES OF GOLF, INC.
January
31, 2008
TABLE
OF CONTENTS
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|
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Page
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ARTICLE
I DEFINITIONS
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1
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Section
1.1 Definitions
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1
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ARTICLE
II THE
MERGER
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6
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Section
2.1
Merger
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6
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Section
2.2
Effective Time
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6
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Section
2.3
Certificate of Incorporation
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6
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Section
2.4
Effects of the Merger
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7
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Section
2.5
Closing
|
7
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Section
2.6
Tax-Free
Merger
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7
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|
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ARTICLE
III MERGER
CONSIDERATION; CONVERSION AND EXCHANGE OF
SECURITIES
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8
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Section
3.1
Manner and Basis of Converting and Exchanging Capital
Stock
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8
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Section
3.2
Surrender
and Exchange of
Certificates
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8
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Section
3.3
Options,
Warrants
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10
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Section
3.4 Parent Common Stock
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11
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ARTICLE
IV REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
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11
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Section
4.1
Organization
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11
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Section
4.2
Authorization; Validity of Agreement
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12
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Section
4.3 Capitalization
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12
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Section
4.4 Consents
and Approvals; No
Violations
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12
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Section
4.5
Financial Statements
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12
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Section
4.6 No Undisclosed Liabilities
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13
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Section
4.7
Litigation
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13
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Section
4.8 No
Default; Compliance with Applicable Laws
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13
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Section
4.9
Broker’s and Finder’s Fees
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13
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Section
4.10
Contracts
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13
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Section
4.11 Tax Returns
and Audits
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14
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Section
4.12 Patents and
Other Intangible Assets
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14
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Section
4.13 Employee
Benefit Plans; ERISA
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15
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Section
4.14 Title to
Property and Encumbrances
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15
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Section
4.15 Condition of
Properties
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16
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Section
4.16 Insurance
Coverage
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16
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Section
4.17 Environmental
Matters
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16
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Section
4.18
Disclosure
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17
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|
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ARTICLE
V REPRESENTATIONS
AND WARRANTIES OF PARENT AND ACQUISITION CORP.
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17
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Section
5.1
Organization
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17
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ii
Section
5.2
Authorization; Validity of Agreement
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17
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Section
5.3 Consents
and Approvals; No Violations
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18
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Section
5.4
Litigation
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18
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Section
5.5 No
Default; Compliance with Applicable Laws
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18
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Section
5.6 Broker’s
and Finder’s Fees;
Broker/Dealer Ownership
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19
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Section
5.7 Capitalization
of
Parent
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19
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Section
5.8 Acquisition
Corp.
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19
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Section
5.9 Validity
of Shares
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19
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Section
5.10 SEC
Reporting and
Compliance
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19
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Section
5.11 Financial
Statements
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20
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Section
5.12 No
General
Solicitation
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20
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Section
5.13 Absence
of Undisclosed
Liabilities
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20
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Section
5.14 Changes
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21
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Section
5.15 Tax
Returns and
Audits
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22
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Section
5.16 Employee
Benefit Plans;
ERISA
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23
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Section
5.17 Interested
Party
Transactions
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23
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Section
5.18 Questionable
Payments
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23
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Section
5.19 Obligations
to or by
Stockholders
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23
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Section
5.20 Schedule
of Assets and
Contracts
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24
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Section
5.21 Environmental
Matters
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25
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Section
5.22 Employees
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25
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Section
5.23 Title
to Property and
Encumbrances
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25
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Section
5.24 Condition
of
Properties
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25
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Section
5.25 Insurance
Coverage
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25
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Section
5.26 Disclosure
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25
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Section
5.27 No
Liabilities
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25
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ARTICLE
VI CONDUCT
OF BUSINESSES PENDING THE MERGER
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26
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Section
6.1 Conduct
of Business by the Company
Pending the Merger
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26
|
Section
6.2 Conduct
of Business by Parent and
Acquisition Corp.
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26
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ARTICLE
VII ADDITIONAL
AGREEMENTS
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27
|
Section
7.1 Access
and
Information
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27
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Section
7.2 Additional
Agreements
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28
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Section
7.3 Publicity
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28
|
Section
7.4 Appointment
of
Directors
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28
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Section
7.5 Name
Changes
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29
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Section
7.6 Stockholder
Consent
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29
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ARTICLE
VIII CONDITIONS
OF PARTIES’ OBLIGATIONS
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30
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Section
8.1 Company
Obligations
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30
|
Section
8.2 Parent
and Acquisition Corp.
Obligations
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31
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ARTICLE
IX INDEMNIFICATION
AND RELATED MATTERS
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32
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Section
9.1 Indemnification
by
Parent
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32
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Section
9.2 Survival
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32
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iii
Section
9.3 Time
Limitations
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33
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Section
9.4 Limitation
on
Liability
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33
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Section
9.5
Notice of Claims
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33
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ARTICLE
X TERMINATION
PRIOR TO CLOSING
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34
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Section
10.1
Termination of Agreement
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34
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Section
10.2
Termination of Obligations
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34
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ARTICLE
XI MISCELLANEOUS
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35
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Section
11.1
Amendments
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35
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Section
11.2
Notices
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35
|
Section
11.3 Entire
Agreement
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35
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Section
11.4
Expenses
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36
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Section
11.5
Severability
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36
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Section
11.6
Successors and Assigns; Assignment
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36
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Section
11.7 No
Third Party Beneficiaries
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36
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Section
11.8
Counterparts; Delivery by Facsimile
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36
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Section
11.9
Waiver
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37
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Section
11.10 No
Constructive Waivers
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37
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Section
11.11
Further Assurances
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37
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Section
11.12
Recitals
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37
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Section
11.13
Headings
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37
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Section
11.14
Governing Law
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37
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Section
11.15
Dispute Resolution
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37
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Section
11.16
Interpretation
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38
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LIST
OF EXHIBITS
Exhibit
|
Description
|
Exhibit
A
|
Certificate
of Incorporation of
Surviving Corporation
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Exhibit
B
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By-laws
of Surviving
Corporation
|
Exhibit
C
|
Directors
of ParentPre-Effective
Time and
Post-Effective Time
|
Exhibit
D
|
Certificate
of Incorporation of
Parent
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Exhibit
E
|
Bylaws
of
Parent
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iv
THIS
AGREEMENT AND PLAN OF MERGER is entered into as of January 31, 2008 by and
among
INNOVATIVE CONSUMER PRODUCTS, INC., a Nevada corporation (“Parent”), WSG
ACQUISITION, INC., a Nevada corporation and a wholly-owned subsidiary of
Parent
(“Acquisition
Corp.”), and WORLD SERIES OF GOLF, INC., a Nevada corporation (the “Company”).
W
I T N E S
S E T H:
WHEREAS,
the respective Boards of
Directors of each of Parent, Acquisition Corp. and the Company have approved,
and deem it advisable and in the best interests of their respective stockholders
to consummate, the acquisition of the Company by Parent, which acquisition
is to
be effected by the merger of the Company with
and into the Acquisition Corp.,
with the Acquisition Corp. being
the surviving entity (the
“Merger”),
upon the terms and subject to the
conditions set forth in this Agreement (as defined herein);
WHEREAS,
the parties hereto intend that
the Merger shall qualify as
a reorganization within the meaning of Section 368(a)(1)(A) of the Internal
Revenue Code of 1986, as amended (the “Code”),
by reason of Section 368(a)(2)(E) of
the Code; and
NOW,
THEREFORE, in consideration of the
mutual agreements and covenants hereinafter set forth, the parties hereto
agree
as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions. Capitalized
terms used in this Agreement shall have the following meanings:
“Acquisition
Corp.” shall have the
meaning given to such term in the preamble to this
Agreement.
“Acquisition
Proposal” shall have the
meaning given to such term in Section
6.2hereof.
“Action”
shall
mean any claim, action, suit,
proceeding, investigation or order.
“Affiliate”
shall
mean, with respect to any
Person, any Person directly or indirectly controlling, controlled by or under
common control with, such Person. For the purposes of this
definition, “control”
(including,
with correlative meaning,
the terms “controlling,”
“controlled
by” and “under
common
control with”) means the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies of such Person through the ownership
of
voting securities, by contract or otherwise.
“Agreement”
shall
mean this Agreement and Plan of
Merger, including the exhibits attached hereto or referred to herein,
as the same may be amended or modified from time to time in accordance with
the
provisions hereof.
“Balance
Sheet” shall have the
meaning given to such term in Section
4.5hereof.
2
“Balance
Sheet Date” shall have the
meaning given to such term in Section
4.5hereof.
“By-laws”
shall
have the meaning given to such
term in Section
2.3(b)hereof.
“Certificate
of Incorporation” shall
have the meaning given to such term in Section
2.3(a)hereof.
“Closing”
shall
have the meaning given to such
term in Section
2.5hereof.
“Closing
Date” shall have the
meaning given to such term in Section
2.5hereof.
“Code”
shall
have the meaning given to such
term in the secondrecital
to this
Agreement.
“Commission”
shall
mean the United States
Securities and Exchange Commission.
“Company”
shall
have the meaning given to such
term in the preamble to this Agreement.
“Company
Capital Stock” shall mean,
collectively, the Company Common Stock and the Company Preferred
Stock, if any.
“Company
Common Stock” shall mean
the common stock, par value
$0.01, of the
Company.
“Company
Material Adverse Effect”
shall mean any change,
effect or circumstance that is materially adverse or is
reasonably likely to be materially adverse to the business, assets, liabilities,
condition (financial or otherwise) or operations of the Company and its
subsidiaries, taken as a whole, other than any such change, effect or
circumstance relating to general economic, regulatory or political conditions,
except to the extent such change, effect or circumstance disproportionately
affects the Company and its subsidiaries, taken as a whole.
“Company
Preferred Stock” shall
mean, collectively, all Preferred Stock, if any, issued or issuable by the
Company.
“Company
Stock Options” shall have
the meaning given to such term in Section
3.3(a)hereof.
“Contract”
shall
have the meaning given to such
term in Section
4.4hereof.
“Consents”
shall
mean any permits, filings,
notices, licenses, consents, authorizations, accreditation, waivers, approvals
and the like of, to, with or by any Person.
“Determination
Date” shall
have the meaning given to such
term in
Section
9.6hereof.
“Dissenting
Shares” shall have the
meaning given to such term in Section
3.2(d)hereof.
“Effective
Time” shall have the
meaning given to such term in Section
2.2
hereof.
“Employee
Benefit Plans” shall have
the meaning assigned to it in Section
4.13hereof.
3
“Environmental
Law” shall mean the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C.
§§ 9601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. §§ 11001 et seq.; the Resource Conservation and Recovery Act, 42
U.S.C. §§ 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et
seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136
et seq. and comparable state statutes dealing with the registration, labeling
and use of pesticides and herbicides; the Clean Air Act, 42 U.S.C. §§ 7401 et
seq.; the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C.
§§
1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.; and the
Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq., as any of the
above referenced statutes have been amended as of the date hereof, all rules,
regulations and policies promulgated pursuant to any of the above referenced
statutes, and any other foreign, federal, state or local law, statute,
ordinance, rule, regulation or policy governing environmental matters, as
the
same have been amended as of the date hereof.
“ERISA”
shall
mean the Employee Retirement
Income Securities Act of 1974, as amended, and the regulations issued
thereunder.
“Exchange
Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations
issued thereunder.
“Fair
Market
Value” shall mean, with
respect to a share of Common Stock on any Determination Date, the average
of the
daily closing prices for the 10 consecutive business days prior to such
date. The closing price for each day shall be the last sales price or
in case no sale takes place on such day, the average of the closing high
bid and
low asked prices, in either case (a) as officially quoted on the OTC Bulletin
Board, the NASDAQ Stock Market or such other market on which the Common Stock
is
then listed for trading or quoted, or (b) if, in the reasonable judgment
of the
Board of Directors of Parent, the OTC Bulletin Board or the NASDAQ Stock
Market
is no longer the principal United States market for the Common Stock, then
as
quoted on the principal United States market for the Common Stock as determined
by the Board of Directors of Parent, or (c) if, in the reasonable judgment
of
the Board of Directors of the Parent, there exists no principal United States
market for the Common Stock, then as reasonably determined in good faith
by the
Board of Directors of Parent.
“Federal
Securities Laws” means the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder.
“GAAP”
shall
mean generally accepted
accounting principles as in effect from time to time in the United Statesconsistently
applied.
“Hazardous
Material” means any
substance or material meeting any one or more of the following
criteria: (a) it is or contains a substance designated as or meeting
the characteristics of a hazardous waste, hazardous substance, hazardous
material, pollutant, chemical substance or mixture, contaminant or toxic
substance under any Environmental Law; (b) its presence at some quantity
requires investigation, notification or remediation under any Environmental
Law;
(c) it contains, without limiting the foregoing, asbestos, polychlorinated
biphenyls, petroleum hydrocarbons, petroleum derived substances or waste,
pesticides, herbicides, crude oil or any fraction thereof, nuclear fuel,
natural
gas or synthetic gas; or (d) mold.
4
“Incentive
Plans” shall have the
meaning given to such term in Section
3.3(d)hereof.
“Indebtedness”
shall
mean any obligation of the
Company that under GAAP is required to be shown on the Balance Sheet of the
Company as a Liability. Any obligation secured by a Lien on, or payable out
of
the proceeds of production from, property of the Company shall be deemed
to be
Indebtedness even though such obligation is not assumed by the
Company.
“Indebtedness
for Borrowed Money” shall
mean (a) all Indebtedness in respect of money borrowed including, without
limitation, Indebtedness which represents the unpaid amount of the purchase
price of any property and is incurred in lieu of borrowing money or using
available funds to pay such amounts and not constituting an account payable
or
expense accrual incurred or assumed in the ordinary course of business of
the
Company, (b) all Indebtedness evidenced by a promissory note, bond or similar
written obligation to pay money, or (c) all such Indebtedness guaranteed
by the
Company or for which the Company is otherwise contingently
liable.
“Information
Statement” shall have the
meaning given to such term in Section
7.7hereof.
“Intellectual
Property” shall have the
meaning given to such term in Section
4.12(b)hereof.
“Investment
Company Act” shall mean the
Investment Company Act of 1940, as amended.
“Letter
of
Transmittal” shall have the
meaning assigned to it in Section
3.2hereof.
“Liability”
shall
mean any and all liability,
debt, obligation, deficiency, Tax, penalty, fine, claim, cause of action
or
other loss, cost or expense of any kind or nature whatsoever, whether asserted
or unasserted, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, and whether due or to become due and regardless of when
asserted.
“Lien”
shall
mean any mortgage, pledge,
security interest, encumbrance, lien or charge of any kind, including, without
limitation, any conditional sale or other title retention agreement, any
lease
in the nature thereof and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction and including
any lien or charge arising by statute or other law.
“Merger”
shall
have the meaning given to such
term in the second recital to this Agreement.
“NRS”
shall
mean the Nevada Revised
Statutes, as amended.
“Parent”
shall
have the meaning given to such
term in the preamble to this Agreement.
“Parent
Balance Sheet” shall have
the meaning assigned to such term in Section
5.13hereof.
“Parent
Balance Sheet Date” shall
have the meaning assigned to it in Section
5.13hereof.
5
“Parent
Common Stock” shall mean
the common stock, par value $0.001 per share, of Parent.
“Parent
Employee Benefit Plans”
shall have the meaning
assigned to such term in Section
5.16hereof.
“Parent
Financial Statements” shall
have the meaning assigned to such term in Section
5.10hereof.
“Parent
Material Adverse Effect”
means any change, effect
or circumstance that is materially adverse or is
reasonably likely to be materially adverse to the business, assets, liabilities,
condition (financial or otherwise) or operations of Parent and its subsidiaries,
taken as a whole, other than any such change, effect or circumstance relating
to
general economic, regulatory or political conditions, except to the extent
such
change, effect or circumstance disproportionately affects Parent and its
subsidiaries, taken as a whole.
“Parent
Preferred
Stock” shall mean the
preferred
stock, par value $0.001
per share, of
Parent.
“Parent
SEC
Documents” shall have the
meaning assigned to such term in Section
5.9hereof.
“Permitted
Liens” shall mean (a) Liens
for taxes and assessments or governmental charges or levies not at the time
due
or in respect of which the validity thereof shall currently be contested
in good
faith by appropriate proceedings; (b) Liens in respect of pledges or deposits
under workmen’s compensation laws or similar legislation, carriers’,
warehousemen’s, mechanics’, laborers’ and materialmens’ and similar Liens, if
the obligations secured by such Liens are not then delinquent or are being
contested in good faith by appropriate proceedings; and (c) Liens incidental
to
the conduct of the business of the Company that were not incurred in connection
with the borrowing of money or the obtaining of advances or credits and which
do
not in the aggregate materially detract from the value of its property or
materially impair the use made thereof by the Company in its
business.
“Parent
Stockholder Consent” shall
have the meaning assigned to such term in Section 7.6
hereof.
“Person”
shall
mean any individual,
corporation, limited liability company, partnership, joint venture, trust
or
other entity or organization, including any government or political subdivision
or an agency or instrumentality thereof.
“Securities
Act” shall mean the
Securities Act of 1933, as amended, and the rules and regulations issued
thereunder.
“Stockholder”
shall
mean any record holder of
Company Capital Stock.
“Surviving
Corporation” shall have the
meaning given to such term in Section
2.1hereof.
“Tax”
or
“Taxes”
shall
mean (a) any and all taxes,
assessments, customs, duties, levies, fees, tariffs, imposts, deficiencies
and
other governmental charges of any kind whatsoever
6
(including,
but not limited to, taxes on
or with respect to net or gross income, franchise, profits, gross receipts,
capital, sales, use, ad valorem, value added, transfer, real property transfer,
transfer gains, transfer taxes, inventory, capital stock, license, payroll,
employment, social security, unemployment, severance, occupation, real or
personal property, estimated taxes, rent, excise, occupancy, recordation,
bulk
transfer, intangibles, alternative minimum, doing business, withholding and
stamp), together with any interest thereon, penalties, fines, damages costs,
fees, additions to tax or additional amounts with respect thereto, imposed
by
the United States (federal, state or local) or other applicable jurisdiction;
(b) any liability for the payment of any amounts described in clause (a)
as a
result of being a member of an affiliated, consolidated, combined, unitary
or
similar group or as a result of transferor or successor liability, including,
without limitation, by reason of Code Section 1.1502-6; and (c) any liability
for the payments of any amounts as a result of being a party to any Tax Sharing
Agreement or as a result of any express or implied obligation to indemnify
any
other Person with respect to the payment of any amounts of the type described
in
either clauses (a) or (b).
“Tax
Return” shall include all
returns and reports (including elections, declarations, disclosures, schedules,
estimates and information returns (including Form 1099 and partnership returns
filed on Form 1065)) required to be supplied to a Tax authority relating
to
Taxes.
“Tax
Sharing
Agreements” shall have the
meaning given to such term in Section
4.15hereof.
ARTICLE
II
THE
MERGER
Section
2.1 Merger.
Upon the
terms and subject to the conditions of this Agreement, at the Effective Time,
the Company shall be merged with and into Acquisition Corp. in
accordance with the
Nevada Revised Statutes (“NRS”). Following
the Effective Time, the separate corporate existence of the Company shall
cease,
and Acquisition Corp. shall continue as the corporation surviving the Merger
(sometimes hereinafter referred to as the “Surviving
Corporation”).
Section
2.2 Effective
Time. The
Parent, the Company and Acquisition Corp. shall cause a certificate of merger
to
be filed on the Closing Date (or on such other date as the Company and Parent
may agree in writing) with the Secretary of State of the State of Nevada
as
provided in the NRS, and shall make all other filings or recordings required
by
the NRS in connection with the Merger. The Merger shall become effective
at such
time as the certificate of merger is duly filed in accordance with the NRS
and
the Secretary of State of Nevada or such later time as specified in the
certificate of merger, and such time is hereinafter referred to as the “Effective
Time.”
Section
2.3 Certificate
of
Incorporation; By-laws; Directors and Officers.
(a)
The
certificate of incorporation of Acquisition Corp. as in effect immediately
prior
to the Effective Time, a copy of which is attached as Exhibit A hereto,
shall be the certificate of incorporation of the Surviving Corporation (the
“Certificate of
Incorporation”) from and after the Effective Time until thereafter
changed or amended as provide therein or in accordance with applicable
law.
7
(b) The
by-laws of Acquisition Corp. as in
effect immediately prior to the Effective Time, a copy of which is attached
as
Exhibit
Bhereto, shall be the
by-laws of the Surviving Corporation (the “By-laws”)
from and after the Effective Time
until thereafter changed or amended as provided therein or in accordance
with
applicable law.
(c)
One or
more of the directors of the Company immediately prior to the Effective Time
shall be the initial directors of the Surviving Corporation and shall hold
office from the Effective Time until their respective successors have been duly
elected or
appointed and qualified or until their earlier death, resignation or removal
in
accordance with the Certificate of Incorporation and
By-laws. The officers of the Company immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation
and
shall hold office from the Effective Time until their respective successors have been duly
elected or
appointed and qualified or until their earlier death, resignation or removal
in
accordance with the Certificate of Incorporation and
By-laws.
(d) At
the
Effective Time as contemplated by Section 2.2 hereof, the officers and directors
of the Parent designated on Exhibit C hereto
shall resign, to be replaced by the officers and directors designated on
Exhibit C hereto,
who
shall immediately take such offices or who shall take such offices upon
compliance with the Federal Securities Laws, as the case may be. The
appointment of new directors in accordance with the terms of this Section
2.3(d)
shall be accomplished through the filling of vacancies in the Board of Directors
of the Parent in compliance with the applicable provisions of the NRS and
the
by-laws of the Parent and without the vote (by written consent or otherwise)
of
the shareholders of the Parent.
Section
2.4 Effects
of the
Merger. The Merger shall have the effects set forth in the NRS. Without
limiting the generality of the foregoing, at the Effective Time, except as
otherwise provided herein, all of the property, rights, privileges, powers
and
franchises of the Company and Acquisition Corp. shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and
Acquisition Corp. shall become the debts, liabilities and duties of the
Surviving Corporation. The Company acknowledges that, from and after the
Effective Time, Parent shall have the absolute and unqualified right to deal
with the assets and business of the Surviving Corporation as its own property
without limitation on the disposition or use of such assets or the conduct
of
such business.
Section
2.5 Closing.
The
consummation of the transactions contemplated by this Agreement, including
the
Merger (the “Closing”), shall
take
place: (a) at the offices of Cane Xxxxx LLP, 0000 X. Xxxx Xxxxxxx Xx., Xxx
Xxxxx, XX at 10:00 a.m. local time on the date on which all of the conditions
to
the Closing set forth in Article VIII hereof
shall be fulfilled or waived in accordance with this Agreement (other than
conditions that can be satisfied only at the Closing, but subject to the
fulfillment or waiver of those conditions at the Closing); or (b) at such
other
place, time and date as the Company and Parent may agree in writing (the
“Closing
Date”).
Section
2.6 Tax-Free
Merger. The parties hereto intend that the Merger will be
treated as a tax-free reorganization under Section 368 of the Code.
8
ARTICLE
III
MERGER
CONSIDERATION; CONVERSION AND EXCHANGE OF SECURITIES
Section
3.1 Manner
and Basis of
Converting and
Exchanging
Capital Stock. At the Effective Time, by virtue of the Merger and without
any action on the part of the Company, Parent or Acquisition Corp. or the
holders of any outstanding shares of capital stock or other securities of
the
Company, Parent or Acquisition Corp.:
(a) Acquisition
Corp. Stock. Each share of common
stock,
par value $0.001 per share, of Acquisition Corp. issued and outstanding
immediately prior to the Effective Time shall be converted into and become
one
validly issued, fully paid and non-assessable
share of capital stock,
no par
value per share, of the Surviving
Corporation, such that Parent shall be the holder of all of the issued and
outstanding shares of capital stock of the Surviving Corporation following
the
Merger.
(b) Company
Common Stock. Each
share of Company Common Stock issued
and outstanding immediately prior to the Effective Time (including all shares
of Company Common
Stock issued upon conversion of all Company Preferred Stock immediately prior
to
the Effective Time) shall
be exchanged for the right to receive one (1) share of Parent Common
Stock.
(c) Treasury
Stock. Notwithstanding any
provision of this Agreement to the contrary, each share of Company Capital
Stock
held in the treasury of the Company and each share of Company Capital Stock,
if
any, owned by Parent or any direct or indirect wholly-owned subsidiary of
Parent
immediately prior to the Effective Time shall be canceled in the Merger and
shall not be converted or exchanged into the right to receive any shares
of
capital stock or other securities of Parent.
(d) No
Fractional Shares. No fractional shares
of
Parent Common Stock shall be issued in, or as a result of, the
Merger. Any fractional shares of Parent Common Stock that a holder of
record of Company Capital Stock would otherwise be entitled to receive as
a
result of the Merger shall be aggregated. If a fractional share of
Parent Common Stock results from such aggregation, the number of shares required
to be issued to such record holder shall be rounded up to the nearest whole
number of shares of Parent Common Stock.
Section
3.2 Surrender
and Exchange of
Certificates .
(a) Letter
of
Transmittal. Promptly after the
Effective Time, Parent shall mail, or cause to be mailed, to each record
holder
of certificate(s) formerly representing ownership of Company Capital Stock
that
was converted into the right to receive Parent Common Stock pursuant to
Section
3.1hereof (i) a letter
of
transmittal (“Letter
of
Transmittal”) for delivery
of such certificate(s) to Parent and (ii) instruction for use in effecting
the
surrender of certificate(s), in each case in form and substance mutually
agreeable to the Company and Parent. Delivery shall be effected, and
risk of loss and title to the Parent Common Stock shall pass, only upon delivery
to the Parent (or a duly authorized agent of Parent) of certificate(s) formerly
representing ownership of Company Capital Stock (or an affidavit of lost
certificate and indemnification or surety bond) and a properly completed
and
duly executed Letter of Transmittal, as described in Section
3.2(b)hereof. Notwithstanding the
foregoing, Parent shall
9
not
be required to mail, or cause to be
mailed, a Letter of Transmittal to any record holder of certificate(s) formerly
representing ownership of Company Capital Stock if such holder has previously
agreed or consented to the exchange of certificates that are held in custody
by
the Company for the benefit of such holder.
(b) Exchange
Procedures. Parent shall issue
to each
former record holder of Company Capital Stock, upon delivery to Parent (or
a
duly authorized agent of Parent) of (i) certificate(s) formerly representing
ownership of Company Capital Stock endorsed in blank or accompanied by duly
executed stock powers (or an affidavit of lost certificate and indemnification
in form and substance reasonably acceptable to Parent stating that, among
other
things, the former record holder has lost his or her certificate(s) or that
such
certificate(s) have been destroyed) and (ii) a properly completed and duly
executed Letter of Transmittal in form and substance reasonably satisfactory
to
Parent, a certificate or certificates registered in the name of such former
record holder representing the number of shares of Parent Common Stock that
such
former record holder is entitled to receive in accordance with Section
3.1hereof. Subject to
Section
3.2(d)hereof, until the
certificate(s) (or affidavit) is delivered together with the Letter of
Transmittal in the manner contemplated by this Section
3.2(b), each certificate
(or affidavit) previously representing ownership of Company Capital Stock
shall
be deemed at and after the Effective Time to represent only the right to
receive
Parent Common Stock and the former record holders thereof shall cease to
have
any other rights with respect to his or her Company Capital
Stock.
(c) Termination
of Exchange Process. Any Parent Common Stock
that remains unclaimed by a former record holder of Company Capital Stock
at the
first anniversary of the Effective Time may be deemed “abandoned property”
subject to applicable abandoned property, escheat and other similar laws
in the
State in which the former record holder resides. None of the Company,
Parent, Acquisition Corp. or the Surviving Corporation shall be liable to
any
person in respect of any Parent Company Stock delivered to a public official
pursuant to any applicable abandoned property, escheat or similar
law.
(d) Dissenting
Shares. Notwithstanding any
provision of this Agreement to the contrary, shares of Company Capital Stock
issued and outstanding immediately prior to the Effective Time and held by
a
Stockholder who has not voted in favor of the Merger or consented thereto
in
writing and who has demanded appraisal for such shares of Company Capital
Stock
in accordance with the
NRS(“Dissenting
Shares”) shall
not be entitled to vote for any
purpose or receive dividends, shall not be converted into the right to receive
Parent Common Stock in accordance with Section
3.1hereof, and shall only
be entitled to receive such consideration as shall be determined pursuant
to the
NRS;
provided,
however,
that if, after the Effective Time,
such Stockholder fails to perfect or withdraws or loses his or her right
to
appraisal or otherwise fails to establish the right to be paid the value
of such
Stockholder’s shares of Company Capital Stock under the NRS,
such shares of Company Capital Stock
shall be treated as if they had converted as of the Effective Time into the
right to receive Parent Common Stock in accordance with Section
3.1hereof, and such shares
of Company Capital Stock shall no longer be Dissenting Shares. All
negotiations with respect to payment for Dissenting Shares shall be handled
jointly by Parent and the Company prior to the Closing and exclusively by
Parent
thereafter. In the event that one percent (1%) or more of the
outstanding shares of the Company are Dissenting Shares, the Parent has the
sole
discretion to terminate this Agreement, which shall forthwith become void
and of
no further force and effect and the parties hereto shall be released from
any
10
and
all
obligations hereunder; provided, however, that nothing herein shall relieve
any
party hereto from liability for the breach of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
(e) Stock
Transfer Books. At the Effective Time,
the
stock transfer books of the Company will be closed and there will be no further
registration of transfers of shares of Company Capital Stock thereafter on
the
records of the Company. If, after the Effective Time, certificates
formerly representing Company Capital Stock are presented to the Surviving
Corporation, these certificates shall be canceled and exchanged for the number
of shares of Parent Common Stock to which the former record holder may be
entitled pursuant to Section
3.1hereof.
(f) Further Rights in Company Stock. All
shares of Parent Common Stock issued upon exchange of shares of Company Capital
Stock in accordance with the terms hereof shall be deemed to have been issued
in
full satisfaction of all rights pertaining to such shares of Company Capital
Stock.
Section
3.3 Options,
Warrants.
(a) As
of the Effective Time,
all options to purchase Company Common Stock issued by the Company,
whether vested or unvested, (the “Old
Options”) shall be
automatically converted to become options to purchase shares of Parent Common
Stock (“Parent
Options”) without further
action by the holder thereof, all in accordance with the applicable provisions of the
Company’s currently
effective incentive
stock option
plan(the “Option
Plan”). EachParent Option shall
constitute an option
to acquire the same number of shares of Parent Common Stock as is
equal to the number of Company Common Stock subject to the
unexercised portion of the
Old Options(with any
fraction resulting from such multiplication to be rounded down to the
nearest whole number
[share]). The
exercise price per share of each Parent Option shall be the same as the
current exercise price of such Old Option (with any fraction
resulting from such
multiplication to be
rounded upto the nearest
wholecent). Upon
conversion, each Parent Option shall be subject to the same terms and conditions
applicable to the corresponding Old Option immediately prior to the conversion
thereof including, without limitation, exercisability, vesting schedule,
and
status as an “incentive stock option” under Section 422 of the Code, if
applicable, and the Parent shall assume and adopt the Option Plan. It
is the Parties intention that any Old Options intended to be “incentive stock
options” under Section 422 of the Code shall remain incentive stock options as
Parent Options. The Old Options shall be converted in accordance with
the applicable requirements of Section 409A and Section 424 of the Code and
the
regulations promulgated thereunder so that the conversion will not be treated
as
a new grant or modification under Section 409A of the Code, and the regulations
thereunder, and will qualify as a substitution or assumption under Section
424
of the Code, and the regulations thereunder. As soon as practicable
after the Effective Time, Parent shall deliver to the holders of Old Options,
notices describing the conversion of such Old Options, and the agreements
evidencing the Old Options shall continue in effect on the same terms and
conditions. Prior to the Effective Time, Parent shall reserve for
issuance the number of shares of Parent Common Stock necessary to satisfy
Parent’s obligations hereunder.
(b) As
of the Effective Time, all warrants
to purchase
Company Common Stock issued
by the Company, whether
vested or unvested, (the “Old
Warrant” and together with
11
the
Old Options, the “Old
Securities”) shall be
automatically converted to become warrantsto
purchase shares of Parent Common
Stock (“Parent
Warrant”)
without further action by the holder
thereof, all in accordance with the applicable provisions of
theOld Warrant.
The
Parent Warrant shall constitute
a warrant to
acquire the same number of
shares of Parent Common Stock as
is equal to the number of
Company Common
Stock subject to the unexercised
portion of the Old Warrant
(with
any fraction
resulting from such multiplication to be rounded down to the nearest whole
number). The
strikeprice
per share of each Parent
Warrant shall be
the same as the current strike price
of such Old Warrant.
(c) As
soon as practicable after the
Effective Time, the Parent or the Surviving Corporation shall take appropriate
actions to collect the Old Securities and
the agreements evidencing the Old
Securities,
which shall be deemed to be canceled
and shall entitle the holder to exchange the Old Securities for
Parent Options and Parent Warrants
in
the Parent.
(d) The
Parent shall take all corporate
action necessary to reserve for issuance a sufficient number of shares of
Parent
Common Stock for delivery upon exercise of the Parent Options and Parent Warrants
to
be issued for Old Securities in
accordance with this
Section 3.3.
Section
3.4 Parent
Common Stock .
Parent shall reserve a sufficient number of shares of Parent Common Stock
to
complete the conversion and exchange of Company Capital Stock into Parent
Common
Stock contemplated by Sections 3.1 and
3.2
hereof, and
the issuance of any Parent Common Stock underlying options and warrants,
notes
or other rights to acquire Parent Common Stock in accordance with Section 3.3
hereof. Parent covenants and agrees that immediately prior to the
Effective Time there will be 19,605,039 shares of Parent Common Stock issued
and
outstanding, and that no other common or preferred stock or equity securities
of
the Parent, or any options, warrants, rights or other agreements or instruments
convertible, exchangeable or exercisable into common or preferred stock or
equity securities of the Parent, shall be issued or outstanding immediately
prior to the Effective Time.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to Parent as follows:
Section
4.1 Organization.
The
Company (i) is duly organized, validly existing and in good standing (or
its
equivalent) under the laws of the State of Nevada, (ii) has all licenses,
permits, authorizations and other Consents necessary to own, lease and operate
its properties and assets and to carry on its business as it is now being
conducted and (iii) has all requisite corporate or other applicable power
and
authority to own, lease and operate its properties and assets and to carry
on
its business as it is now being conducted and presently proposed to be
conducted, except where such failure would not have, or be reasonably likely
to
have, a Company Material Adverse Effect. The Company is duly qualified or
authorized to conduct business and is in good standing (or its equivalent)
as a
foreign corporation or other entity in all jurisdictions in which the ownership
or use of its assets or nature of the business conducted by it makes such
qualification or authorization necessary, except where the failure to be
so duly
qualified, authorized and in good standing would not have a Company Material
Adverse Effect.
12
Section
4.2 Authorization;
Validity of
Agreement. The Company has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Company
of
this Agreement and the consummation of the transactions contemplated hereby
have
been duly authorized by the Board of Directors of the Company and no other
action (except the approval of the requisite Stockholders solely with respect
to
consummation of the Merger) on the part of the Company or any of its
Stockholders or subsidiaries is necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company
and
(assuming due and valid authorization, execution and delivery hereof by Parent
and Acquisition Corp.) is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as such
enforcement is limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity.
Section
4.3 Capitalization. After
conversion of all Company Preferred Stock, as of the Effective Date the
authorized and issued capital stock of the Company shall consist of 14,400,000
shares of Company Common Stock and 0 shares of the Company Preferred
Stock. All the outstanding shares of Company Capital Stock are duly
authorized, validly issued, fully paid and non-assessable.
Section
4.4 Consents
and Approvals; No
Violations . Except for (a) approval of the Merger by the requisite
Stockholders and (b) filing of the certificate of merger with the Secretary
of
State of the State of Nevada, neither the execution, delivery or performance
of
this Agreement by the Company nor the consummation of the transactions
contemplated hereby will (i) violate any provision of its certificate of
incorporation or by-laws; (ii) violate, conflict with or result in a breach
of
any provision of, or constitute a default (or an event which, with notice
or
lapse of time or both, would constitute a default) under, require the consent
of
or result in the creation of any encumbrance upon any of the properties of
the
Company or any of its subsidiaries under any material note, bond, mortgage,
indenture, deed of trust, license, franchise, permit, lease, contract, agreement
or other instrument (collectively, “Contract”) to which
the Company or any its subsidiaries or any of their respective properties
may be
bound; (iii) require any Consent, approval or authorization of, or notice
to, or
declaration, filing or registration with, any governmental entity by or with
respect to the Company or any of its subsidiaries; or (iv) violate any order,
writ, judgment, injunction, decree, law, statute, rule or regulation applicable
to the Company or any of its subsidiaries or any of their respective properties
or assets; except, in the cases of clauses (ii), (iii) and (iv), any such
violations, conflicts, breaches, defaults or encumbrances, or any failure
to
receive any such Consent, approval or authorization, or to make any such
notice,
declaration, filing or registration as will not result in, or could reasonably
be expected to result in, a Company Material Adverse Effect.
Section
4.5 Financial
Statements
. The Company has delivered or made available as of the date hereof or shall,
prior to the Closing Date, deliver or make available to Parent the audited
balance sheets of the Company for the fiscal year ended December 31, 2006
(the
“Balance Sheet
Date”) and an unaudited balance sheet, statement of operation, and cash
flow analysis (with footnotes, for the nine month period ended September
30,
2007 and the related consolidated and consolidating statements of income,
stockholders’ equity and cash flows of the Company for the fiscal year ended
December 31, 2006 and the nine month period ended September 30,
2007. The foregoing financial statements (including any notes
thereto) (i) have been prepared based upon
13
the
books
and records of the Company, (ii) have been prepared in accordance with
GAAP
(except as otherwise noted therein), and (iii) present fairly, in all material
respects, the financial position, results of operations and cash flows
of the
Company as at their respective dates and for the periods then
ended. To the knowledge of the Company, since the Balance Sheet Date,
no fact or condition exists that has not been disclosed to Parent that
has had
or could reasonably be expected to have a Company Material Adverse
Effect.
Section
4.6 No
Undisclosed
Liabilities. As of the date hereof, except (a) for Liabilities reflected
on the face of the balance sheet for the nine month period ended September
30,
2007 (the “Balance
Sheet”) and (b) Liabilities of the same type, magnitude and scope as
those reflected on the Balance Sheet which have arisen since the Balance
Sheet
Date in the ordinary course of business, and which would not, in the aggregate,
result in a Company Material Adverse Effect, the Company does not have any
Liability.
Section
4.7 Litigation.
There is
no Action pending or, to the knowledge of the Company, threatened, involving
the
Company or its subsidiaries or affecting any of the officers, directors or
employees of the Company or its subsidiaries with respect to the Company’s or
any subsidiary’s business by or before any governmental entity or by any third
party that has had or could reasonably be expected to have a Company Material
Adverse Effect and neither the Company nor any of its subsidiaries have received
written notice that any such Action is threatened. Neither the
Company nor any of its subsidiaries is in default under any judgment, order
or
decree of any governmental entity applicable to its business, which default
could reasonably be expected to have a Company Material Adverse
Effect.
Section
4.8 No
Default; Compliance with
Applicable Laws. The Company is not in default or violation of any
material term, condition or provision of (i) its certificate of incorporation
or
by-laws or (ii) to the Company’s knowledge, any law applicable to the Company or
its property and assets, and the Company has not received written notice
of any
violation of or Liability under any of the foregoing (whether material or
not).
Section
4.9 Broker’s
and Finder’s
Fees. To the knowledge of the Company, no Person has, or as a result of
the transactions contemplated or described herein will have, any right or
valid
claim against the Company for any commission, fee or other compensation as
a
finder or broker, or in any similar capacity.
Section
4.10 Contracts.
(a) The
Company is not in violation or breach of any material contract, except such
violations that, in the aggregate, would not result in, or would not reasonably
be expected to result in, a Company Material Adverse Effect. There
does not exist any event or condition that, after notice or lapse of time
or
both, would constitute an event of default or breach under any material Contract
on the part of the Company or, to the knowledge of the Company, any
other party thereto or would permit the modification, cancellation or
termination of any material Contract or result in the creation of any lien
upon,
or any person acquiring any right to acquire, any assets of the
Company, other than any events or conditions that, in the aggregate would
not
result in, or would not reasonably be expected to result in, a Company Material
Adverse Effect. The Company has not received in writing any claim or threat
that
the Company has breached any of the terms and conditions of any material
Contract, other than any material Contracts the
14
breach
of
which, in the aggregate, would not result in, or would not reasonably be
expected to result in, a Company Material Adverse Effect.
(b) The consent
of, or the delivery of notice to or filing with, any party to a material
Contract is not required for the execution and delivery by the Company of
this
Agreement or the consummation of the transactions contemplated under the
Agreement.. The Company
has made available to Parent and Acquisition Corp. true and complete copies
of
all Contracts and other documents requested by Parent or Acquisition
Corp.
Section
4.11 Tax
Returns and
Audits. All required federal, state and local Tax Returns of the Company
have been accurately prepared and duly and timely filed, and all federal,
state
and local Taxes required to be paid with respect to the periods covered by
such
returns have been paid. The Company is not and has not been delinquent in
the
payment of any Tax. The Company has not had a Tax deficiency proposed or
assessed against it and has not executed a waiver of any statute of limitations
on the assessment or collection of any Tax. None of the Company’s federal income
Tax Returns nor any state or local income or franchise Tax Returns has been
audited by governmental authorities. The reserves for Taxes reflected
on the Balance Sheet are and will be sufficient for the payment of all unpaid
Taxes payable by the Company as of the Balance Sheet Date. Since the
Balance Sheet Date, the Company has made adequate provisions on its books
of
account for all Taxes with respect to its business, properties and operations
for such period. The Company has withheld or collected from each
payment made to each of its employees the amount of all Taxes (including,
but
not limited to, federal, state and local income taxes, Federal Insurance
Contribution Act taxes and Federal Unemployment Tax Act taxes) required to
be
withheld or collected therefrom, and has paid the same to the proper Tax
receiving officers or authorized depositaries. There are no federal,
state, local or foreign audits, actions, suits, proceedings, investigations,
claims or administrative proceedings relating to Taxes or any Tax Returns
of the
Company now pending, and the Company has not received any notice of any proposed
audits, investigations, claims or administrative proceedings relating to
Taxes
or any Tax Returns. The Company is not obligated to make a payment,
nor is it a party to any agreement that under certain circumstances could
obligate it to make a payment, that would not be deductible under Section
280G
of the Code. The Company has not agreed nor is required to make any
adjustments under Section 481(a) of the Code (or any similar provision of
state,
local and foreign law) by reason of a change in accounting method or otherwise
for any Tax period for which the applicable statute of limitations has not
yet
expired. The Company is not a party to, is not bound by and does not
have any obligation under, any Tax sharing agreement, Tax indemnification
agreement or similar contract or arrangement, whether written or unwritten
(collectively, “Tax
Sharing Agreements”), nor does it have any potential liability or
obligation to any Person as a result of, or pursuant to, any Tax Sharing
Agreements.
Section
4.12 Patents
and Other Intangible
Assets .
(a) To
the knowledge of the Company,
the
Company (i) owns or has the right to
use, pursuant to a valid license, sublicense, agreement, or
permission, free and clear of all
Liens, all patents, trademarks, service marks, trade names, copyrights, licenses
and rights with respect to the foregoing used in or necessary for the conduct
of
its business as now conducted or proposed to be conducted without infringing
upon or otherwise acting
adversely to the right or claimed right of any Person under or with respect
to
any of the foregoing.
15
(b) To
the knowledge of the Company, the
Company owns and has the right to use all trade secrets, if any, including
know-how, negative know-how, formulas, patterns, programs, devices, methods,
techniques, inventions, designs, processes, computer programs and technical
data
and all information that derives independent economic value, actual or
potential, from not being generally known or known by competitors (collectively,
“Intellectual
Property”) required for or
incident to the development, operation and sale of all products and services
sold by the Company, free and clear of any right, Lien or claim of
others. All Intellectual Property can and will be transferred by the
Company to the Surviving Corporation as a result of the Merger and without
the
consent of any Person other than the Company.
Section
4.13 Employee
Benefit Plans;
ERISA.
(a) All
“employee benefit plans” (within the meaning of Section 3(3) of the ERISA) of
the Company and other employee benefit or fringe
benefit arrangements, practices, contracts, policies or programs of every
type,
other than programs merely involving the regular payment of wages, commissions,
or bonuses established, maintained or contributed to by the Company, whether
written or unwritten and whether or not funded, are in material compliance
with
the applicable requirements of ERISA, the Code and any other applicable state,
federal or foreign law.
(b) There
are no pending claims or lawsuits
that have been asserted or instituted against any Employee Benefit Plan,
the
assets of any of the trusts or funds under the Employee Benefit Plans, the
plan
sponsor or the plan administrator of any of the Employee Benefit Plans or
against any fiduciary of an Employee Benefit Plan with respect to the operation
of such plan, nor does the Company have any knowledge of any incident,
transaction, occurrence or circumstance which might reasonably be expected
to
form the basis of any such claim or lawsuit.
(c) There
is no pending or, to the knowledge
of the Company, threatened investigation, or pending or possible enforcement
action by the Pension Benefit Guaranty Corporation, the Department of Labor,
the
Internal Revenue Service or any other government agency with respect to any
Employee Benefit Plan and the Company has no knowledge of any incident,
transaction, occurrence or circumstance which might reasonably be expected
to
trigger such an investigation or enforcement action.
(d) No
actual or, to the knowledge of the
Company, contingent Liability exists with respect to the funding of any Employee
Benefit Plan or for any other expense or obligation of any Employee Benefit
Plan, except as disclosed on the Balance Sheet, and no contingent Liability
exists under ERISA with respect to any “multi-employer plan,” as defined in
Section 3(37) or Section 4001(a)(3) of ERISA.
(e) No
events have occurred or are
reasonably expected to occur with respect to any Employee Benefit Plan that
would cause a material change in the costs of providing benefits under such
Employee Benefit Plan or would cause a material change in the cost of providing
such Employee Benefit Plan.
Section
4.14 Title
to Property and
Encumbrances. The Company has good and valid title to all properties and
assets used in the conduct of its business (except for property held
16
under
valid and subsisting leases which are in full force and effect and which
are not
in default) free of all Liens except Permitted Liens and such ordinary
and
customary imperfections of title, restrictions and encumbrances as do not
in the
aggregate constitute a Company Material Adverse Effect.
Section
4.15 Condition
of
Properties. All facilities, machinery, equipment, fixtures and other
properties owned, leased or used by the Company are in operating condition,
subject to ordinary wear and tear, and are adequate and sufficient for the
Company’s existing business.
Section
4.16 Insurance
Coverage.
There is in full force and effect one or more policies of insurance issued
by
insurers of recognized responsibility insuring the Company and its properties,
products and business against such losses and risks, and in such amounts,
as are
customary for corporations of established reputation engaged in the same
or
similar business and similarly situated. The Company has not been refused
any
insurance coverage sought or applied for, and the Company has no reason to
believe that it will be unable to renew its existing insurance coverage as
and
when the same shall expire upon terms at least as favorable to those currently
in effect, other than possible increases in premiums that do not result from
any
act or omission of the Company. No suit, proceeding or action or, to the
knowledge of the Company, threat of suit, proceeding or action has been asserted
or made against the Company due to alleged bodily injury, disease, medical
condition, death or property damage arising out of the function or malfunction
of a product, procedure or service designed, manufactured, sold or distributed
by the Company.
Section
4.17 Environmental
Matters.
(a) To
the knowledge of the Company, the
Company has never generated, used, handled, treated, released, stored or
disposed of any Hazardous Materials on any real property on which it now
has or
previously had any leasehold or ownership interest, except in compliance
with
all applicable Environmental Laws.
(b) To
the knowledge of the Company, the
historical and present operations of the business of the Company are in
compliance with all applicable Environmental Laws, except where any
non-compliance has not had and would not reasonably be expected to have a
Company Material Adverse Effect.
(c) There
are no material pending or, to the
knowledge of the Company, threatened, demands, claims, information requests
or
notices of noncompliance or violation against or to the Company relating
to any
Environmental Law; and, to the knowledge of the Company, there are no conditions
or occurrences on any of the real property used by the Company in connection
with its business that would reasonably be expected to lead to any such demands,
claims or notices against or to the Company, except such as have not had,
and
would not reasonably be expected to have, a Company Material Adverse
Effect.
(d) To
the knowledge of the Company, (i) the
Company has not, sent or disposed of, otherwise had taken or transported,
arranged for the taking or disposal of (on behalf of itself, a customer or
any
other party) or in any other manner participated or been involved in the
taking
of or disposal or release of a Hazardous Material to or at a site that is
contaminated by any Hazardous Material or that, pursuant to any Environmental
Law, (A) has been placed
17
on
the “National Priorities List”, the
“CERCLIS” list, or any similar state or federal list, or (B) is subject to or
the source of a claim, an administrative order or other request to take
“removal”, “remedial”, “corrective” or any other “response” action, as defined
in any Environmental Law, or to pay for the costs of any such action at
the
site; (ii) the Company is not involved in (and has no basis to reasonably
expect
to be involved in) any suit or proceeding and has not received (and has
no basis
to reasonably expect to receive) any written notice, request for information
or
other communication from any governmental authority or other third party
with
respect to a release or threatened release of any Hazardous Material or
a
violation or alleged violation of any Environmental Law, and has not received
(and has no basis to reasonably expect to receive) written notice of any
claims
from any Person relating to property damage, natural resource damage or
to
personal injuries from exposure to any Hazardous Material; and (iii) the
Company
has timely filed every report required to be filed, acquired all necessary
certificates, approvals and permits, and generated and maintained all required
data, documentation and records under all Environmental Laws, in all such
instances except where the failure to do so would not reasonably be expected
to
have, individually or in the aggregate, a Company Material Adverse
Effect.
Section
4.18 Disclosure.
There is
no fact relating to the Company that the Company has not disclosed to Parent
in
writing that has had or is currently having a Company Material Adverse Effect.
No representation or warranty by the Company herein and no information disclosed
in the exhibits hereto by the Company contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF PARENT AND ACQUISITION CORP.
Parent
and Acquisition Corp. hereby represent and warrant to the Company as
follows:
Section
5.1 Organization.
Each of
Parent and Acquisition Corp. (i) is duly organized, validly existing and
in good
standing under the laws of its State of incorporation or organization, (ii)
has
all licenses, permits, authorizations and other Consents necessary to own,
lease
and operate its properties and assets and to carry on its business as it
is now
being conducted and (iii) has all requisite corporate or other applicable
power
and authority to own, lease and operate its properties and assets and to
carry
on its business as it is now being conducted and presently proposed to be
conducted, in each case except where such failures would not have, or be
reasonably likely to have, a Parent Material Adverse Effect. Each of Parent
and
Acquisition Corp. is duly qualified or authorized to conduct business and
is in
good standing (or its equivalent) as a foreign corporation or other entity
in
all jurisdictions in which the ownership or use of its assets or nature of
the
business conducted by it makes such qualification or authorization necessary,
except where the failure to be so duly qualified, authorized and in good
standing would not have a Parent Material Adverse Effect.
Section
5.2 Authorization;
Validity of
Agreement. Each of Parent and Acquisition Corp. has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery
and
performance by each of Parent and Acquisition Corp. of this Agreement and
all
other agreements and instruments to be executed pursuant to this Agreement,
and
the consummation of the transactions
18
contemplated
hereby and thereby, have been duly authorized by the Board of Directors
of each
of Parent and Acquisition Corp. and the stockholder of Acquisition Corp.,
and no
other action on the part of either of Parent or Acquisition Corp. is necessary
to authorize the execution and delivery of this Agreement and all other
agreements and instruments to be executed pursuant to this Agreement and
the
consummation by either of Parent or Acquisition Corp. of the transactions
contemplated hereby and thereby. This Agreement has been duly executed
and
delivered by the Parent and Acquisition Corp. and (assuming due and valid
authorization, execution and delivery hereof by the Company) is a valid
and
binding obligation of each of Parent and Acquisition Corp., enforceable
against
each of them in accordance with its terms, except as such enforcement is
limited
by bankruptcy, insolvency and other similar laws affecting the enforcement
of
creditors’ rights generally and by general principles of
equity.
Section
5.3 Consents
and Approvals; No
Violations. Except for filing of the certificate of merger with the
Secretary of State of the State of Nevada, neither the execution, delivery
or
performance of this Agreement by either of Parent and Acquisition Corp. nor
the
consummation of the transactions contemplated hereby will (i) violate any
provision of the certificate of incorporation or by-laws of Parent or
Acquisition Corp.; (ii) violate, conflict with or result in a breach of any
provision of, or constitute a default (or an event which, with notice or
lapse
of time or both, would constitute a default) under, require the consent of
or
result in the creation of any Lien upon any of the properties of Parent or
Acquisition Corp. under any Contract to which Parent or Acquisition Corp.
or any
of their properties may be bound; (iii) require any Consent, approval or
authorization of, or notice to, or declaration, filing or registration with,
any
governmental entity by or with respect to Parent or any subsidiary of Parent,
or
(iv) violate any order, writ, judgment, injunction, decree, law, statute,
rule
or regulation applicable to any of Parent or Acquisition Corp. or any of
their
respective properties or assets; except, in the cases of clauses (ii), (iii)
and
(iv), any such violations, conflicts, breaches, defaults or encumbrances,
or any
failure to receive any such Consent, approval or authorization, or to make
any
such notice, declaration, filing or registration as will not result in, or
could
reasonably be expected to result in, a Parent Material Adverse Effect.
Section
5.4 Litigation.
There is
no Action pending or, to the knowledge of the Parent, threatened, involving
Parent or Acquisition Corp. or any subsidiary of Parent or affecting the
officers, directors or employees of Parent or Acquisition Corp. or any
subsidiary of Parent with respect to Parent’s, Acquisition Corp.’s, or any of
Parent’s subsidiaries’, businesses by or before any governmental entity or by
any third party and none of Parent, Acquisition Corp. nor any subsidiary
of
Parent has received written notice that any such Action is
threatened. None of Parent, Acquisition Corp. nor any subsidiary of
Parent is in default under any judgment, order or decree of any governmental
entity applicable to its business which could reasonably be expected to have
a
Parent Material Adverse Effect.
Section
5.5 No
Default; Compliance with
Applicable Laws. Neither Parent nor any of Parent’s subsidiaries is in
default or violation of any material term, condition or provision of (i)
their
respective certificate of incorporation, by-laws or similar organizational
documents or (ii) any law applicable to Parent or any of Parent’s subsidiaries
or its property and assets and neither Parent nor any of Parent’s subsidiaries
has received written notice of any violation of or Liability under any of
the
foregoing (whether material or not).
19
Section
5.6 Broker’s
and Finder’s Fees;
Broker/Dealer Ownership. No person(s), firm, corporation or other entity
is entitled by reason of any act or omission of Parent or Acquisition Corp.
to
any broker’s or finder’s fees, commission or other similar compensation, nor,
with respect to the execution, delivery and performance of this Agreement
or
with respect to the consummation of the transactions contemplated hereby
will
any such person have any right or valid claim against the Company, Parent
or
Acquisition Corp. to any such payment.
Section
5.7 Capitalization
of
Parent. As of the date hereof, the authorized capital stock of Parent
consists of 90,000,000 shares of Parent Common Stock and 10,000,000 shares
of
Parent Preferred Stock. As of the date hereof and immediately prior to the
Effective Time, there are 19,605,039 shares of Parent Common Stock, par value
$0.001, issued and outstanding and no shares of Parent Preferred Stock issued
and outstanding. Other than as provided in Article III of this
Agreement in connection with securities to be issued or to become issuable
in
connection with or as a result of the Merger, Parent has no outstanding options,
warrants, rights or commitments to issue shares of Parent Common Stock or
any
capital stock or other securities of Parent or Acquisition Corp., and there
are
no outstanding securities convertible or exercisable into or exchangeable
for
shares of Parent Common Stock or any capital stock or other securities of
Parent
or Acquisition Corp. There is no voting trust, agreement or
arrangement among any of the beneficial holders of Parent Common Stock affecting
the nomination or election of directors or the exercise of the voting rights
of
Parent Common Stock. There are no registration rights or similar
rights applicable to any shares of Parent Common Stock or any capital stock
or
other securities of Parent or Acquisition Corp. All outstanding
shares of the capital stock of Parent are validly issued and outstanding,
fully
paid and non-assessable, and none of such shares have been issued in violation
of the preemptive rights of any person. All of the shares of Parent
Common Stock issued and outstanding immediately prior to the Effective Time
have
been issued in compliance with the Securities Act and applicable state
securities laws and (i) pursuant to effective registration statements filed
with
the Securities and Exchange Commission and/or (ii) in reliance on valid
exemptions from registration or qualification
thereunder.
Section
5.8 Acquisition
Corp.
Acquisition Corp. is a Nevada corporation and a wholly-owned subsidiary of
Parent that was formed on January 10, 2008 specifically for the purpose of
the
Merger and that has not conducted any business or acquired any property,
and
will not conduct an business or acquire any property prior to the Closing
Date,
except in preparation for and otherwise in connection with the transactions
contemplated by this Agreement. Parent owns all of the issued and
outstanding capital stock of Acquisition Corp., as no outstanding options,
warrants or rights to purchase capital stock or other securities of Acquisition
Corp., other than the capital stock of Acquisition Corp. owned by
Parent. Except for Acquisition Corp., Parent has no subsidiaries.
Acquisition Corp. has no subsidiaries.
Section
5.9 Validity
of Shares.
The shares of Parent Common Stock to be issued in accordance with Article III hereof,
when issued and delivered in accordance with the terms hereof, shall be duly
authorized, validly issued, fully paid and
non-assessable.
Section
5.10 SEC
Reporting and
Compliance.
(a) Parent
filed a registration statement on
Form SB-2 under the Securities Act which became effective on March 7, 2007. Since
that date, Parent has
timely filed with the Commission all registration statements, proxy statements,
information statements and reports
20
required
to be filed by Parent pursuant
to the Exchange Act (collectively,
the “ParentSEC
Documents”). Parent has not filed
with
the Commission a certificate on Form 15 pursuant to the Exchange
Act.
(b) None
of the Parent SEC Documents, as of
their respective dates, contained any untrue statement of a material fact
or
omitted to state a material fact necessary in order to make the statements
contained therein not misleading. Each of the
Parent SEC Documents complied, and
each
Parent SEC Documentto be filed with the
Commission prior to
the Effective Date shall comply, in all material respects, with the applicable
requirements of the Securities Act and the Securities Exchange, as the case
may
be. Each of the financial statements (including, in each case, any
related notes), contained in the Parent SEC Documents, including any Parent
SEC
Documents filed after the date of this Agreement until the Closing, complied,
as
of its respective filing date, in all material respects with all applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto.
(c) Parent
has not filed, and nothing has
occurred with respect to which Parent would be required to file, any report
on
Form 8-Kprior to the date
hereof. Prior to
and until the Closing, Parent will provide to the Company copies of any and
all
amendments or supplements to the Parent SEC Documents filed with the Commission
and all subsequent registration statements and reports filed by Parent
subsequent to the filing of the Parent SEC Documents with the Commission
and any
and all subsequent information statements, proxy statements, reports or notices
filed by the Parent with the Commission or delivered to the stockholders
of
Parent.
(d) Parent
is not an “investment company”
within the meaning of Section 3 of the Investment Company
Act.
(e) The
Parent Common Stock is presently
eligible for quotation and trading on the NASD Over-the-Counter Bulletin
Board.
.
(f) Between
the date hereof and the Closing
Date, Parent shall continue to satisfy any applicable filing requirements
of the
Exchange Act or the Securities Act, as the case may be, and all other
requirements of applicable securities laws.
(g) To
the knowledge of Parent, Parent has
complied with the Securities Act, Exchange Act and all other applicable federal
and state securities laws.
Section
5.11 No
General
Solicitation. In issuing Parent Common Stock in the Merger hereunder,
neither Parent nor anyone acting on its behalf has offered to sell Parent
Common
Stock by any form of general solicitation or advertising.
Section
5.12 Financial
Statements.
The balance sheets, and statements of income, stockholders’ equity and cash
flows (including any notes thereto) contained in the Parent SEC Documents
(the
“Parent Financial
Statements”) (i) have been prepared in accordance with GAAP, (ii) are in
accordance with the books and records of the Parent, and (iii) present fairly
in
all material respects the financial condition of the Parent at the dates
therein
specified and the results of its operations and changes in financial position
for the periods therein specified.
Section
5.13 Absence
of Undisclosed
Liabilities. Neither Parent nor Acquisition Corp. has any Liability at or
prior to the Closing, except (a) as disclosed in the Parent SEC Documents,
21
(b)
to
the extent set forth on or reserved against in the balance sheet of Parent
as of
October 31, 2007 (the “Parent Balance
Sheet”) or the notes to the Parent Financial Statements, (c) current
Liabilities incurred and obligations under agreements entered into in the
usual
and ordinary course of business, consistent with past practice, since October
31, 2007 (the “Parent
Balance Sheet Date”), none of which, individually or in the aggregate,
constitutes a Parent Material Adverse Effect, (d) attorney’s fees and accounting
fees incurred by the Parent since the Parent Balance Sheet Date, including
those
related to this Agreement and all of the transactions related thereto and
contemplated thereby, including but not limited to preparation and filing
of
disclosures with the SEC, and (e) by the specific terms of any written
agreement, document or arrangement attached as an exhibit to the Parent SEC
Documents.
Section
5.14 Changes.
Since the
Parent Balance Sheet Date, except as disclosed in the Parent SEC Documents,
Parent has not (a) incurred any debts, obligations or Liabilities, absolute,
accrued or, to the Parent’s knowledge, contingent, whether due or to become due,
except for current Liabilities incurred in the usual and ordinary course
of
business, (b) discharged or satisfied any Liens other than those securing,
or
paid any obligation or Liability other than, current liabilities shown on
the
Parent Balance Sheet and current Liabilities incurred since the Parent Balance
Sheet Date, in each case in the usual and ordinary course of business, (c)
mortgaged, pledged or subjected to Lien any of its assets, tangible or
intangible, other than in the usual and ordinary course of business, (d)
sold,
transferred or leased any of its assets, except in the usual and ordinary
course
of business, (e) cancelled or compromised any debt or claim, or waived or
released any right of material value, (f) suffered any physical damage,
destruction or loss (whether or not covered by insurance) that could reasonably
be expected to have a Parent Material Adverse Effect, (g) entered into any
transaction other than in the usual and ordinary course of business, (h)
encountered any labor union difficulties, (i) made or granted any wage or
salary
increase or made any increase in the amounts payable under any profit sharing,
bonus, deferred compensation, severance pay, insurance, pension, retirement
or
other employee benefit plan, agreement or arrangement, other than in the
ordinary course of business consistent with past practice, or entered into
any
employment agreement, (j) issued or sold any shares of capital stock, bonds,
notes, debentures or other securities or granted any options (including employee
stock options), warrants or other rights with respect thereto, (k) declared
or
paid any dividends on or made any other distributions with respect to, or
purchased or redeemed, any of its outstanding capital stock, (l) suffered
or
experienced any change in, or condition affecting, the financial condition
of
the Parent other than changes, events or conditions in the usual and ordinary
course of its business, none of which (either by itself or in conjunction
with
all such other changes, events and conditions) could reasonably be expected
to
have a Parent Material Adverse Effect, (m) made any change in the accounting
principles, methods or practices followed by it or depreciation or amortization
policies or rates theretofore adopted, (n) made or permitted any amendment
or
termination of any material Contract, agreement or license to which it is
a
party, (o) suffered any material loss not reflected in the Parent Balance
Sheet
or its statement of income for the year ended on the Parent Balance Sheet
Date,
(p) paid, or made any accrual or arrangement for payment of, bonuses or special
compensation of any kind or any severance or termination pay to any present
or
former officer, director, employee, stockholder or consultant, (q) made or
agreed to make any charitable contributions or incurred any non-business
expenses in excess of $1,000 in the aggregate, or (r) entered into any Contract,
agreement or license, or otherwise obligated itself, to do any of the
foregoing.
22
Section
5.15 Tax
Returns and
Audits. All required federal, state and local Tax Returns of the Parent
have been accurately prepared in all material respects and duly and timely
filed, and all federal, state and local Taxes required to be paid with respect
to the periods covered by such returns have been paid to the extent that
the
same are material and have become due, except where the failure so to file
or
pay could not reasonably be expected to have a Parent Material Adverse Effect.
The Parent is not and has not been delinquent in the payment of any Tax.
The
Parent has not had a Tax deficiency assessed against it. None of the Parent’s
federal income Tax Returns nor any state or local income or franchise Tax
Returns has been audited by governmental authorities. The reserves
for Taxes reflected on the Parent Balance Sheet are sufficient for the payment
of all unpaid Taxes payable by the Parent with respect to the period ended
on
the Parent Balance Sheet Date. There are no federal, state, local or
foreign audits, actions, suits, proceedings, investigations, claims or
administrative proceedings relating to Taxes or any Tax Returns of the Parent
now pending, and the Parent has not received any notice of any proposed audits,
investigations, claims or administrative proceedings relating to Taxes or
any
Tax Returns.
Section
5.16 Employee
Benefit Plans;
ERISA.
(a) Except
as disclosed in the Parent SEC
Documents, there are no “employee benefit plans” (within the meaning of Section
3(3) of ERISA) nor any other employee benefit or fringe benefit arrangements,
practices, contracts, policies or programs other than programs merely involving
the regular payment of wages, commissions, or bonuses established, maintained
or
contributed to by the Parent, whether written or unwritten and whether or
not funded. Any plans
listed in the Parent SEC Documents are hereinafter referred to as the
“Parent
Employee Benefit Plans.”
(b) Any
current and prior material
documents, including all amendments thereto, with respect to each Parent
Employee Benefit Plan have been made available to the
Company.
(c) All
Parent Employee Benefit Plans are in
material compliance with the applicable requirements of ERISA, the Code and
any
other applicable state, federal or foreign law.
(d) There
are no pending, or to the
knowledge of the Parent, threatened, claims or lawsuits that have been asserted
or instituted against any Parent Employee Benefit Plan, the assets of any
of the
trusts or funds under the Parent Employee Benefit Plans, the plan sponsor
or the
plan administrator of any of the Parent Employee Benefit Plans or against
any
fiduciary of a Parent Employee Benefit Plan with respect to the operation
of
such plan.
(e) There
is no pending, or to the knowledge
of the Parent, threatened, investigation or pending or possible enforcement
action by the Pension Benefit Guaranty Corporation, the Department of Labor,
the
Internal Revenue Service or any other government agency with respect to any
Parent Employee Benefit Plan and Parent has no knowledge of any incident,
transaction, occurrence or circumstance which might reasonably be expected
to
trigger such an investigation or enforcement action.
23
(f) No
actual
or, to the knowledge of Parent, contingent Liability exists with respect
to the
funding of any Parent Employee Benefit Plan or for any other expense or
obligation of any Parent Employee Benefit Plan, except as disclosed on the
Parent Financial Statements or the Parent SEC Documents, and to the knowledge
of
the Parent, no contingent Liability exists under ERISA with respect to any
“multi-employer plan,” as defined in Section 3(37) or Section 4001(a)(3) of
ERISA.
Section
5.17 Interested
Party
Transactions. Except as disclosed in the Parent SEC Documents, no
officer, director or stockholder of the Parent or any Affiliate of any such
Person or the Parent has or has had, either directly or indirectly, (a) an
interest in any Person that (i) furnishes or sells services or products that
are
furnished or sold or are proposed to be furnished or sold by the Parent or
(ii)
purchases from or sells or furnishes to the Parent any goods or services,
or (b)
a beneficial interest in any Contract to which the Parent is a party or by
which
it may be bound or affected.
Section
5.18 Questionable
Payments. Neither the Parent, Acquisition Corp. nor to the knowledge of
the Parent, any director, officer, agent, employee or other Person associated
with or acting on behalf of the Parent or Acquisition Corp., has used any
corporate funds for (a) unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity, (b) made any direct or
indirect unlawful payments to government officials or employees from corporate
funds, (c) established or maintained any unlawful or unrecorded fund of
corporate monies or other assets, (d) made any false or fictitious entries
on
the books of record of any such corporations, or (e) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
Section
5.19 Obligations
to or by
Stockholders. Except as disclosed in the Parent SEC Documents, the Parent
has no Liability or obligation or commitment to any stockholder of Parent
or any
Affiliate or “associate” (as such term is defined in Rule 405 under the
Securities Act) of any stockholder of Parent, nor does any stockholder of
Parent
or any such Affiliate or associate have any Liability, obligation or commitment
to the Parent.
Section
5.20 Schedule
of Assets and
Contracts . Except as expressly set forth in this Agreement, the Parent
Balance Sheet or the notes thereto, the Parent is not a party to any Contract
not made in the ordinary course of business that is material to the Parent.
Parent does not own any real property. Parent is not a party to any Contract
(a)
with any labor union, (b) for the purchase of fixed assets or for the purchase
of materials, supplies or equipment in excess of normal operating requirements,
(c) for the employment of any officer, individual employee or other Person
on a
full-time basis or any contract with any Person for consulting services,
(d)
with respect to bonus, pension, profit sharing, retirement, stock purchase,
stock option, deferred compensation, medical, hospitalization or life insurance
or similar plan, contract or understanding with any or all of the employees
of
Parent or any other Person, (e) relating to or evidencing Indebtedness for
Borrowed Money or subjecting any asset or property of Parent to any Lien
or
evidencing any Indebtedness, (f) guaranteeing of any Indebtedness, (g) under
which Parent is lessee of or holds or operates any property, real or personal,
owned by any other Person, (h) under which Parent is lessor or permits any
Person to hold or operate any property, real or personal, owned or controlled
by
Parent, (i) granting any preemptive right, right of first refusal or similar
right to any Person, (j) with any Affiliate of Parent or any present or former
officer, director or stockholder of Parent, (k) obligating Parent to pay
any
royalty or similar
24
charge
for the use or exploitation of any tangible or intangible property, (1)
containing a covenant not to compete or other restriction on the parent’s
ability to conduct a business or engage in any other activity, (m) with respect
to any distributor, dealer, manufacturer’s representative, sales agency,
franchise or advertising contract or commitment, (n) regarding the registration
of securities under the Securities Act, (o) characterized as a collective
bargaining agreement, or (p) with any Person continuing for a period of more
than three months from the Closing Date that involves an expenditure or receipt
by Parent in excess of $1,000. The Parent maintains no insurance
policies and insurance coverage of any kind with respect to Parent, its
business, premises, properties, assets, employees and agents. Parent
has furnished to the Company true and complete copies of all agreements and
other documents requested by the Company.
Section
5.21 Environmental
Matters.
(a) The
Parent has never generated, used,
handled, treated, released, stored or disposed of any Hazardous Materials
on any
real property on which it now has or previously had any leasehold or ownership
interest, except in compliance with all applicable Environmental
Laws.
(b) The
historical and present operations of
the business of the Parent compliance with all applicable Environmental Laws,
except where any non-compliance has not had and would not reasonably be expected
to have a Parent Material Adverse Effect.
(c) (i)
The Parent has not, sent or disposed
of, otherwise had taken or transported, arranged for the taking or disposal
of
(on behalf of itself, a customer or any other party) or in any other manner
participated or been involved in the taking of or disposal or release of
a
Hazardous Material to or at a site that is contaminated by any Hazardous
Material or that, pursuant to any Environmental Law, (A) has been placed
on the
“National Priorities List”, the “CERCLIS” list, or any similar state or federal
list, or (B) is subject to or the source of a claim, an administrative order
or
other request to take “removal”, “remedial”, “corrective” or any other
“response” action, as defined in any Environmental Law, or to pay for the costs
of any such action at the site; (ii) the Parent is not involved in (and has
no
basis to reasonably expect to be involved in) any suit or proceeding and
has not
received (and has no basis to reasonably expect to receive) any written notice,
request for information or other communication from any governmental authority
or other third party with respect to a release or threatened release of any
Hazardous Material or a violation or alleged violation of any Environmental
Law,
and has not received (and has no basis to reasonably expect to receive) written
notice of any claims from any Person relating to property damage, natural
resource damage or to personal injuries from exposure to any Hazardous Material;
and (iii) the Parent has timely filed every report required to be filed,
acquired all necessary certificates, approvals and permits, and generated
and
maintained all required data, documentation and records under all Environmental
Laws, in all such instances except where the failure to do so would not
reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect.
(d) There
are
no material pending or, to the knowledge of Parent, threatened, demands,
claims,
information requests or notices of noncompliance or violation against or
to the
Parent relating to any Environmental Law; and, to the knowledge of Parent,
there
are no conditions or occurrences on any of the real property used by Parent
in
connection with its
25
business
that would reasonably be expected to lead to any such demands, claims or
notices
against or to Parent, except such as have not had, and would not reasonably
be
expected to have, a Parent Material Adverse Effect.
Section
5.22 Employees.
Other than
pursuant to ordinary arrangements of employment compensation, Parent is not
under any obligation or liability to any officer, director, employee or
Affiliate of Parent.
Section
5.23 Title
to Property and
Encumbrances. Parent has good and
valid title
to all properties and assets used in the conduct of its business (except
for
property held under valid and subsisting leases which are in full force and
effect and which are not in default) free of all Liens except Permitted Liens
and such ordinary and customary imperfections of title, restrictions and
encumbrances as do not, individually or in the aggregate constitute a Parent Material Adverse
Effect.
Section
5.24 Condition
of
Properties. All facilities, machinery, equipment, fixtures and
other properties owned, leased or used by Parent are in operating
condition, subject to ordinary wear and tear, and are adequate and sufficient
for the Parent’s existing
business.
Section
5.25 Insurance
Coverage. There is in full force and effect one or more
policies of insurance issued by insurers of recognized responsibility insuring
Parent and its properties,
products and business against such losses and risks, and in such amounts,
as are
customary for corporations of established reputation engaged in the same
or
similar business and similarly situated. Parent has not been refused
any
insurance coverage sought or applied for, and Parent has no reason to believe
that it will be unable to renew its existing insurance coverage as and when
the
same shall expire upon terms at least as favorable to those currently in
effect,
other than possible increases in premiums that do not result from any act
or
omission of Parent. No suit,
proceeding or action or, to the best current actual knowledge of Parent, threat of suit,
proceeding or action has been asserted or made against Parent due to alleged bodily
injury, disease, medical condition, death or property damage arising out
of the
function or malfunction of a product, procedure or service designed,
manufactured, sold or distributed by Parent.
Section
5.26 Disclosure.
There is
no fact relating to Parent or Acquisition Corp. that Parent has not disclosed
to
the Company in writing that has had, is having or is reasonably likely to
have a
Parent Material Adverse Effect. No representation or warranty by Parent or
Acquisition Corp. herein and no information disclosed in the exhibits hereto
by
Parent or Acquisition Corp. contains any untrue statement of a material fact
or
omits to state a material fact necessary to make the statements contained
herein
or therein not misleading.
Section
5.27 No
Liabilities. As of
the Closing Date, there are no Liabilities or Indebtedness of the Parent
or
Acquisition Corp. of any kind whatsoever, whether recorded on the Balance
Sheet
of Parent or Acquisition Corp. or not, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be expected to result
in such Liability or Indebtedness. Neither the Parent nor the
Acquisition Corp. is a guarantor of any Indebtedness of any other person,
firm
or corporation.
26
ARTICLE
VI
CONDUCT
OF
BUSINESSES PENDING THE MERGER
Section
6.1 Conduct
of Business by the
Company Pending the Merger. Prior to the Effective Time, unless Parent or
Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated
by this Agreement:
(i)
the
business of the Company shall be conducted only in the ordinary course
consistent with the past practice;
(ii) except
with respect to the issuance of
Company Common Stock in connection with the conversion of Company
Preferred Stock immediately prior to the Effective Time, the Company shall not
(A) directly or
indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase
or
otherwise acquire any shares of Company Capital
Stock; (B) amend its
certificate of incorporation or by-laws except to effectuate the transactions
contemplated in this Agreement; or (C) split, combine or reclassify the
outstanding Company Capital Stock or declare, set aside or pay any dividend
payable in cash, stock or property or make any distribution with respect
to any
such stock;
(iii) except
with respect to the issuance of
Company Common Stock in connection with the conversion of Company
Preferred Stock immediately prior to the Effective Time, the Company shall not
(A) issue any
additional shares of, or options, warrants or rights of any kind to acquire
any
shares of, Company Capital
Stock; (B) acquire or
dispose of any fixed assets or acquire or dispose of any other substantial
assets other than in the ordinary course of business; (C) incur additional
Indebtedness or any other Liabilities or enter into any other transaction
other
than in the ordinary course of business; (D) enter into any Contract, agreement,
commitment or arrangement with respect to any of the foregoing except this
Agreement; or (E) except as contemplated by this Agreement, enter into any
Contract, agreement, commitment or arrangement to dissolve, merge, consolidate
or enter into any other material business combination;and
(iv) the
Company shall use its reasonable
best efforts to preserve intact the business of the Company, to keep available
the service of its present officers and key employees, and to preserve the
good
will of those having business relationships with it.
Section
6.2 Conduct
of Business by
Parent and Acquisition Corp. Pending the Merger. Prior to the Effective
Time, unless the Company shall otherwise agree in writing or as otherwise
contemplated expressly permitted by this Agreement:
(i) the
business of Parent and Acquisition
Corp. shall be conducted only in the ordinary course consistent with past
practice;
(ii) neither
Parent nor Acquisition Corp.
shall (A) directly or indirectly redeem, purchase or otherwise acquire or
agree
to redeem, purchase or otherwise acquire any shares of its capital stock;
(B)
amend its certificate of incorporation or by-laws; or (C) split, combine
or
reclassify its capital stock or declare, set aside or pay any dividend payable
in cash, stock or property or make any distribution with respect to such
stock;
and
27
(iii) neither
Parent nor Acquisition Corp.
shall (A) issue or agree to issue any additional shares of, or options, warrants
or rights of any kind to acquire shares of, its capital stock; (B) acquire
or
dispose of any assets other than in the ordinary course of business; (C)
incur
additional Indebtedness or any other Liabilities or enter into any other
transaction except in the ordinary course of business; (D) enter into any
Contract, agreement, commitment or arrangement with respect to any of the
foregoing except this Agreement, or (E) except as contemplated by this
Agreement, enter into any Contract, agreement, commitment or arrangement
to
dissolve, merge; consolidate or enter into any other material business contract
or enter into any negotiations in connection therewith.
(iv) Parent
shall use its best efforts to
preserve intact the business of Parent and Acquisition Corp., to keep available
the service of its present officers and key employees, and to preserve the
good
will of those having business relationships with Parent and Acquisition
Corp.and to file all
required SEC Reports under the Exchange Act;
(v) neither
Parent nor Acquisition Corp.
will, nor will they authorize any director or authorize or permit any officer
or
employee or any attorney, accountant or other representative retained by
them
to, make, solicit, encourage any inquiries with respect to, or engage in
any
negotiations concerning, any Acquisition Proposal (as defined
below). Parent will promptly advise the Company in writing of any
such inquiries or Acquisition Proposal (or requests for information) and
the
substance thereof. As used in this paragraph, “Acquisition
Proposal” shall mean any
proposal for a merger or other business combination involving the Parent
or
Acquisition Corp. or for the acquisition of a substantial equity interest
in
either of them or any material assets of either of them other than as
contemplated by this Agreement. Parent will immediately cease and
cause to be terminated any existing activities, discussions or negotiations
with
any Person conducted heretofore with respect to any of the foregoing;
and
(vi) neither
Parent nor Acquisition Corp.
will enter into any new employment agreements with any of their officers
or
employees or grant any increases in the compensation or benefits of their
officers and employees.
ARTICLE
VII
ADDITIONAL
AGREEMENTS
Section
7.1 Access
and
Information . The Company, Parent and Acquisition Corp. shall each afford
to the other and to the other’s accountants, counsel and other representatives
reasonable access during normal business hours throughout the period prior
to
the Effective Time of all of its properties, books, contracts, commitments
and
records (including but not limited to Tax Returns) and during such period,
each
shall furnish promptly to the other all information concerning its business,
properties and personnel as such other party may reasonably request, provided
that no investigation pursuant to this Section 7.1 shall
affect any representations or warranties made herein. Each party
shall hold, and shall cause its employees and agents to hold, in confidence
all
such information (other than such information that (i) becomes generally
available to the public other than as a result of a disclosure by such party
or
its directors, officers, managers, employees, agents or advisors, or (ii)
becomes available to such party on a non-confidential basis from a source
other
than a party hereto or its advisors, provided
28
that
such
source is not known by such party to be bound by a confidentiality agreement
with or other obligation of secrecy to a party hereto or another party until
such time as such information is otherwise publicly available; provided, however,
that: (A) any such information may be disclosed to such party’s
directors, officers, employees and representatives of such party’s advisors who
need to know such information for the purpose of evaluating the transactions
contemplated hereby (it being understood that such directors, officers,
employees and representatives shall be informed by such party of the
confidential nature of such information); (B) any disclosure of such information
may be made as to which the party hereto furnishing such information has
consented in writing; and (C) any such information may be disclosed pursuant
to
a judicial, administrative or governmental order or request provided, that
the
requested party will promptly so notify the other party so that the other
party
may seek a protective order or appropriate remedy and/or waive compliance
with
this Agreement and if such protective order or other remedy is not obtained
or
the other party waives compliance with this provision, the requested party
will
furnish only that portion of such information which is legally required and
will
exercise its best efforts to obtain a protective order or other reliable
assurance that confidential treatment will be accorded the information
furnished. If this Agreement is terminated, each party will deliver
to the other all documents and other materials (including copies) obtained
by
such party or on its behalf from the other party as a result of this Agreement
or in connection herewith, whether so obtained before or after the execution
hereof.
Section
7.2 Additional
Agreements. Subject to the terms and conditions herein provided, each of
the parties hereto agrees to use its commercially reasonable best efforts
to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to
consummate and make effective the transactions contemplated by this Agreement,
including using its commercially reasonable best efforts to satisfy the
conditions precedent to the obligations of any of the parties hereto to obtain
all necessary waivers, and to lift any injunction or other legal bar to the
Merger (and, in such case, to proceed with the Merger as expeditiously as
possible). In order to obtain any necessary governmental or regulatory action
or
non-action, waiver, Consent, extension or approval, each of Parent, Acquisition
Corp. and the Company agrees to take all reasonable actions and to enter
into
all reasonable agreements as may be necessary to obtain timely governmental
or
regulatory approvals and to take such further action in connection therewith
as
may be necessary. In case at any time after the Effective Time any further
action is necessary or desirable to carry out the purposes of this Agreement,
the proper officers and/or directors of Parent, Acquisition Corp. and the
Company shall take all such necessary action.
Section
7.3 Publicity.
No party
shall issue any press release or public announcement pertaining to the Merger
that has not been agreed upon in advance by Parent and the Company, except
as
Parent reasonably determines to be necessary in order to comply with the
rules
of the Commission; provided that in
such
case Parent will use its best efforts to allow Company to review and reasonably
approve any of the same prior to its release.
Section
7.4 Appointment
of
Directors. Immediately upon the Effective Time, Parent shall, in
accordance with Section 2.3(d),
accept the resignations and cause the appointments of those officers and
directors of Parent identified in Exhibit C hereto,
subject to any notice and waiting period requirements of federal
law. At the first annual meeting of Parent’s stockholders and
thereafter, the election of members of Parent’s Board of Directors shall be
accomplished in accordance with the by-laws of Parent.
29
Section
7.5 Name
Change. As soon
as practicable on or after the Effective Time, Parent shall take all required
legal actions to change Parent’s corporate name to “World Series of Golf, Inc.”
(the “Name
Change”).
Section
7.6 StockholderConsent.
(a) So
long as the Board of Directors of the
Company shall not have withdrawn, modified or changed its recommendation
in
accordance with the provisions of Section
7.8(b)hereof,
the Company, acting through its
Board of Directors, shall,
in accordance with Nevada law and its certificate
of incorporation and
by-laws, take all actions reasonably necessary to establish a record date
for,
duly call, give notice of, convene and hold a stockholders meeting for the
purpose of obtaining the requisite approval and adoption of this Agreement
and
the transactions contemplated hereby by the Stockholders. The Company
shall notify each Stockholder, whether or not entitled to vote, of the
proposed Company
stockholders’ meeting. Such meeting notice
shall
state that the purpose,or
one of the purposes, of the meeting
is to consider the Merger and shall contain or be accompanied by a copy or
summary of this Agreement. Notwithstanding the foregoing, the Board
of Directors of the Company shall not be required to take all actions reasonably
necessary to establish a record date for, duly call, give notice of, convene
and
hold a stockholders meeting for the purpose of obtaining the requisite approval
and adoption of this Agreement and the transactions contemplated hereby by
the
Stockholders if the Company’s Board of Directors and the requisite Stockholders
otherwise take all actions reasonably necessary to approve this Agreement
and
the transactions contemplated hereby by written consent in lieu of a meeting
of
the stockholders of the Company to the extent permitted byapplicable law.
(b) The
Board of Directors of the Company
shall unanimously recommend such approval and shall use all reasonable efforts
to solicit and obtain such approval; provided,
however,
that the Board of Directors of the
Company may at any time prior to approval of the Stockholders (i) decline
to
make, withdraw, modify or change any recommendation or declaration regarding
this Agreement or the Merger or (ii) recommend and declare advisable any
other
offer or proposal, to the extent the Board of Directors of the Company
determines in good faith, based upon advice of legal counsel, that withdrawing,
modifying, changing or declining to make its recommendation regarding this
Agreement or the Merger or recommending and declaring advisable any other
offer
or proposal is necessary to comply with its fiduciary duties under applicable
law (which declinations, withdrawal, modification or change shall not constitute
a breach by the Company of this Agreement). The Company shall provide
written notice to Parent promptly upon the Company taking any action referred
to
in the foregoing proviso.
(c) Pursuant
to the NRS,
at any time before the certificate of
merger is filed with the Secretary of State of the State of Nevada,
including any time after the Merger is
authorized by the Stockholders, the Merger may be abandoned and this Agreement
may be terminated in accordance with the terms hereof, without further action
by
the Stockholders.
30
ARTICLE
VIII
CONDITIONS
OF PARTIES’ OBLIGATIONS
Section
8.1 Company
Obligations.
The obligations of Parent and Acquisition Corp. under this Agreement are
subject
to the fulfillment at or prior to the Closing of the following conditions,
any
of which may be waived in whole or in part by Parent.
(a) No
Errors,
etc.The
representations
and
warranties of the Company under this Agreement shall be deemed to have been
made
again on the Closing Date and shall then be true and correct in all material
respects.
(b) Compliance
with Agreement. The Company shall have
performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by
it on
or before the Closing Date.
(c) No
Company
Material Adverse Effect. Since the date hereof,
there shall not have been any event or circumstance that has resulted in
a
Company Material Adverse Effect, and no event has occurred or circumstance
exists that would reasonably be expected to result in a Company Material
Adverse
Effect.
(d) Certificate
of Officers. The
Company shall have delivered to Parent and Acquisition Corp. a certificate
dated
the Closing Date, executed on its behalf by the Chief Executive Officer of
the
Company, certifying the satisfaction of the conditions specified in paragraphs
(a), (b) and (c) of this Section 8.1.
(e) No
Restraining
Action. No Action or proceeding before any court, governmental
body or agency shall have been threatened, asserted or instituted to restrain
or
prohibit, or to obtain substantial damages in respect of, this Agreement
or the
carrying out of the transactions contemplated by this Agreement.
(f) Conversion
of Company
Preferred Stock. The Company shall have completed the
conversion of all issued and outstanding Company Preferred Stock to Company
Common Stock.
(g) Supporting
Documents. Parent and Acquisition Corp. shall have received
the following:
(1)
Copies
of resolutions of the Board of Directors and the stockholders of the Company,
certified by the President of the Company, authorizing and approving the
Merger
and the execution, delivery and performance of this Agreement and all other
documents and instruments to be delivered pursuant hereto and
thereto.
(2) A
certificate of incumbency executed by
the Secretary of the Company certifying the names, titles and signatures
of the
officers authorized to execute any documents referred to in this Agreement
and
further certifying that the certificate of incorporation and by-laws of the
Company delivered to Parent and Acquisition Corp. at the time of the execution
of this Agreement have been validly adopted and have not been amended or
modified since the date hereof.
31
(3) Evidence
as of a recent date of the good
standing and corporate existence of the Company issued by the
Secretary of State of the
State of Nevada.
Section
8.2 Parent
and Acquisition Corp.
Obligations. The obligations of the Company under this Agreement are
subject to the fulfillment at or prior to the Closing of the following
conditions any of which may be waived in whole or in part by the
Company:
(a) No
Errors,
etc. The
representations
and
warranties of Parent and Acquisition Corp. under this Agreement shall be
deemed
to have been made again on the Closing Date and shall then be true and correct
in all material respects.
(b) Compliance
with Agreement. Parent and Acquisition
Corp. shall have performed and complied in all material respects with all
agreements and conditions required by this Agreement to be performed or complied
with by them on or before the Closing Date.
(c) No
Parent
Material Adverse Effect. Since the date hereof,
there shall not have been any event or circumstance that has resulted in
a
Parent Material Adverse Effect and no event has occurred or circumstance
exists
that would be reasonably expected to result in such a Parent Material Adverse
Effect.
(d) Certificate
of Officers. Parent and Acquisition
Corp. shall have delivered to the Company a certificate dated the Closing
Date,
executed on their behalf by their respective Presidents, certifying the
satisfaction of the conditions specified in paragraphs (a), (b), and (c)
of this
Section
8.2.
(e) Assignment. Parent
shall have
completed, if necessary, an assignment of all assets and liabilities of the
Parent immediately prior to the Effective Time (other than its ownership
interest in Acquisition Corp.) to an unrelated third party in a transaction
satisfactory to the Company.
(f) Supporting
Documents. The
Company shall have received the following:
(1) Copies
of resolutions of Parent’s and
Acquisition Corp.’s respective board of directors and the sole stockholder of
Acquisition Corp., certified by their respective Secretaries, authorizing
and
approving the Merger and the execution, delivery and performance of this
Agreement and all other documents and instruments to be delivered by them
pursuant hereto.
(2) A
certificate of incumbency executed by
the respective Secretaries of Parent and Acquisition Corp. certifying the
names,
titles and signatures of the officers authorized to execute the documents
referred to in paragraph (1) above and further certifying that the certificates
of incorporation and by-laws of Parent and Acquisition Corp. appended thereto
have not been amended or modified.
(3) A
certificate, dated the Closing Date,
executed by the Secretary of each of the Parent and Acquisition Corp.,
certifying that, except for the filing of the certificate of merger with
the
Secretary of State of the State of Nevada: (i)
all consents,
authorizations, orders and approvals of, and filings and registrations with,
any
32
court,
governmental body or instrumentality that are required to be obtained by
Parent
or Acquisition Corp. for the execution and delivery of this Agreement and
the
consummation of the Merger shall have been duly
made or obtained; and (ii) no action or proceeding before any court,
governmental body or agency has been threatened, asserted or instituted
against
Parent or Acquisition Corp. to restrain or prohibit, or to obtain
substantial damages in respect of, this Agreement or the carrying out of
the
transactions contemplated by this Agreement.
(4) A
certificate of Parent’s transfer agent
and registrar, certifying as of the business day prior to the Closing Date,
a
true and complete list of the names and addresses of the record owners of
all of
the outstanding shares of Parent Common Stock, together with the number of
shares of Parent Common Stock held by each record owner.
(5) The
executed resignations of all
directors and officers of Parent, with the director resignations to take
effect
following the notice
period
required by federal law,
and (ii) executed releases from each such director and officer in the form
and
substance acceptable to the Company in its sole discretion.
(6) Evidence
as of a recent date of the good
standing and corporate existence of each of the Parent and Acquisition Corp.
issued by the Secretary of State of their respective states of
incorporation.
(7) Such
additional supporting documentation
and other information with respect to the transactions contemplated hereby
as
the Company may reasonably request.
ARTICLE
IX
INDEMNIFICATION
AND RELATED MATTERS
Section
9.1 Indemnification
by
Parent. Parent shall indemnify and hold harmless the Company and the
Stockholders (collectively, the “Company Indemnified
Parties”), and shall reimburse the Company Indemnified Parties for, any
loss, liability, claim, damage, expense (including, but not limited to, costs
of
investigation and defense and reasonable attorneys’ fees) or diminution of value
(collectively, “Damages”) arising
from or in connection with (a) any inaccuracy, in any material respect, in
any
of the representations and warranties of Parent and Acquisition Corp. in
this
Agreement or in any certificate delivered by Parent and Acquisition Corp.
to the
Company pursuant to this Agreement, or any actions, omissions or statements
of
fact inconsistent with any such representation or warranty, (b) any failure
by
Parent or Acquisition Corp. to perform or comply in any material respect
with
any covenant or agreement in this Agreement, (c) any claim for brokerage
or
finder’s fees or commissions or similar payments based upon any agreement or
understanding alleged to have been made by any such party with Parent or
Acquisition Corp. in connection with any of the transactions contemplated
by
this Agreement, (d) Taxes attributable to any transaction or event occurring
on
or prior to the Closing, (e) any claim relating to or arising out of any
Liabilities of either Parent or Acquisition Corp. on or prior to Closing
or with
respect to accounting fees arising thereafter, or (f) any litigation, action,
claim, proceeding or investigation by any third party relating to or arising
out
33
of
the
business or operations of Parent, or the actions of Parent or any holder
of
Parent capital stock prior to the Effective Time.
Section
9.2 Survival.
All
representations, warranties, covenants and agreements of Parent and Acquisition
Corp. contained in this Agreement or in any instrument delivered pursuant
to
this Agreement shall survive until twelve (12) months after the Effective
Date.
The representations and warranties of the Company contained in this Agreement
or
in any instrument delivered pursuant to this Agreement will terminate at,
and
have no further force and effect after, the Effective Time.
Section
9.3 Time
Limitations.
Neither Parent nor Acquisition Corp. shall have any liability (for
indemnification or otherwise) with respect to any representation or warranty,
or
covenant or agreement to be performed and complied with prior to the Effective
Time, unless on or before the twelve month anniversary of the Effective Time
(the “Claims
Deadline”), Parent is given notice of a claim with respect thereto, in
accordance with Section 9.5,
specifying the factual basis therefore in reasonable detail to the extent
then
known by the Company Indemnified Parties.
Section
9.4 Limitation
on
Liability. The obligations of Parent and Acquisition Corp. to the Company
Indemnified Parties set forth in Section 9.1 shall
be
subject to the following limitations:
(a) The
aggregate liability of Parent and
Acquisition Corp. to the Company shall not exceed $50,000.
(b) Other
than claims based on fraud or for
specific performance, injunctive or other equitable relief, the Company
Indemnified Parties’ sole and exclusive remedy for any and all claims for
Damages pursuant to Section
9.1hereof shall be the
indemnification provided under the terms and subject to the conditions of
this
Article
IX.
Section
9.5 Notice
of
Claims.
(a) If,
at any time on or prior to the
Claims Deadline, Company Indemnified Parties shall assert a claim for
indemnification pursuant to Section
9.1, such Company
Indemnified Parties shall submit to Parent a written claim
stating: (i) that a Company Indemnified Party incurred or reasonably
believes it may incur Damages and the amount or reasonable estimate thereof
of
any such Damages; and (ii) in reasonable detail, the facts alleged as the
basis
for such claim and the section or sections of this Agreement alleged as the
basis or bases for the claim.
(b) In
the event that any action, suit or
proceeding is brought against any Company Indemnified Party with respect
to
which Parent may have liability under this Article
IX, the Parent shall
have
the right, at its cost and expense, to defend such action, suit or proceeding
in
the name and on behalf of the Company Indemnified Party; provided,
however,
that a Company Indemnified Party shall
have the right to retain its own counsel, with fees and expenses paid by
Parent,
if representation of the Company Indemnified Party by counsel retained by
Parent
would be inappropriate because of actual or potential differing interests
between Parent and the Company Indemnified Party. In connection with
any action, suit or proceeding subject to this Article
IX, Parent and each Company
Indemnified Party agree to render to each
34
other
such assistance as may reasonably
be required in order to ensure proper and adequate defense of such action,
suit
or proceeding. Parent shall not, without the prior written consent of
the applicable Company Indemnified Parties, which consent shall not be
unreasonably withheld or delayed, settle or compromise any claim or demand
if
such settlement or compromise does not include an irrevocable and unconditional
release of such Company Indemnified Parties for any liability arising out
of
such claim or demand.
ARTICLE
X
TERMINATION
PRIOR TO CLOSING
Section
10.1 Termination
of
Agreement This Agreement may be terminated at any time prior to the
Closing:
(a) by
the mutual written consent of the
Company, Acquisition Corp. and Parent;
(b) by
the Company, if Parent or Acquisition
Corp. (i) fails to perform in any material respect any of its agreements
contained herein required to be performed by it on or prior to the Effective
Time, (ii) materially breaches any of its representations, warranties or
covenants contained herein, which failure or breach is not cured within thirty
(30) days after the Company has notified Parent and Acquisition Corp. of
its
intent to terminate this Agreement pursuant to this paragraph
(b);
(c) by
Parent and Acquisition Corp., if the
Company (i) fails to perform in any material respect any of its agreements
contained herein required to be performed by it on or prior to the Closing
Date,
(ii) materially breaches any of its representations, warranties or covenants
contained herein, which failure or breach is not cured within thirty (30)
days
after Parent or Acquisition Corp. has notified the Company of its intent
to
terminate this Agreement pursuant to this paragraph (c);
(d) by
either the Company, on the one hand,
or Parent and Acquisition Corp., on the other hand, if there shall be any
order,
writ, injunction or decree of any court or governmental or regulatory agency
binding on Parent, Acquisition Corp. or the Company, which prohibits or
materially restrains any of them from consummating the transactions contemplated
hereby; providedthat
the parties hereto shall have used
their best efforts to have any such order, writ, injunction or decree lifted
and
the same shall not have been lifted within ninety (90) days after entry,
by any
such court or governmental or regulatory agency;
(e) by
either the Company, on the one hand,
or Parent and Acquisition Corp., on the other hand, if the Closing has not
occurred on or prior to November 30,
2007,
for any reason other than delay or
nonperformance of the party seeking such termination;
(f) by
the Company if the Board of Directors
of the Company determines in good faith, based upon advice of legal counsel,
that termination pursuant to this Section
10.1(f)is necessary to
comply with its fiduciary duties under applicable law as provided in
Section
7.8hereof.
Section
10.2 Termination
of
Obligations. Termination of this Agreement pursuant to Section 10.1
hereof shall terminate all obligations of the parties hereunder, except for
the
35
obligations
under Article
IX, Article
X, and Sections11.4,
11.7,
11.14,11.15
and 11.16 hereof;
provided,
however,
that
termination pursuant to paragraphs (b) or (c) of Section 10.1 shall
not relieve the defaulting or breaching party or parties from any liability
to
the other parties hereto.
ARTICLE
XI
MISCELLANEOUS
Section
11.1 Amendments. Subject
to applicable law, this Agreement may be amended or modified by the parties
hereto by written agreement executed by each party to be bound thereby and
delivered by duly authorized officers of the parties hereto at any time prior
to
the Effective Time; provided, however,
that after
the approval of the Merger by the requisite Stockholders, no amendment or
modification of this Agreement shall be made that by law requires further
approval from any Stockholders without such further approval.
Section
11.2 Notices.
Any notice,
request, instruction, other document or communications to be given hereunder
by
any party hereto to any other party hereto shall be in writing and shall
be
deemed to have been duly given (a) when delivered personally, (b) upon
confirmation of delivery if by electronic mail, (c) upon receipt of a
transmission confirmation (with a confirming copy delivered personally or
sent
by overnight courier) if sent by facsimile or like transmission, or (d) on
the
next business day when sent by Federal Express, United Parcel Service, U.S.
Express Mail or other reputable overnight courier for guaranteed next day
delivery, as follows:
If
to Parent or Acquisition Corp.,
to:
|
Attention: Xxxx
Xxxxx Xxxxxx, CEO
00000
Xxxxxx Xxxxx
Xxx
Xxxxx, XX 00000
|
If
to the Company,
to:
|
World
Series of Golf,
Inc.
Attention: Xxxxx
Xxxxxxx,
CEO
0000
X. Xxxxxxx
Xx.
Xxx
Xxxxx, XX 00000
|
or
to
such other persons or addresses as may be designated in writing by the party
to
receive such notice. Nothing in this Section 11.2 shall
be
deemed to constitute consent to the manner and address for service of process
in
connection with any legal proceeding (including arbitration arising in
connection with this Agreement), which service shall be effected as required
by
applicable law.
Section
11.3 Entire
Agreement.
This Agreement and the exhibits attached hereto or referred to herein constitute
the entire agreement of the parties hereto, and supersede all prior
36
agreements
and undertakings, both written and oral, among the parties hereto, with respect
to the subject matter hereof and thereof.
Section
11.4 Expenses.
Except as
otherwise expressly provided herein, whether or not the Merger occurs, all
expenses and fees incurred by Parent and Acquisition Corp. on one hand, and
the
Company on the other, shall be borne solely and entirely by the party that
has
incurred the same; provided, that
if the
Merger occurs, Parent agrees to pay, and shall cause the Surviving Corporation
to pay, any unpaid fees and expenses of the Company (including fees and expenses
of its counsel and other advisors) in connection with the consummation of
the
transactions contemplated by this Agreement.
Section
11.5 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions
and
provisions of this Agreement will nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto will negotiate in good faith to amend
or
modify this Agreement so as to effect the original intent of the parties
as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
Section
11.6 Successors
and Assigns;
Assignment. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Neither
this
Agreement nor any of the rights, interests or obligations hereunder shall
be
assigned or delegated by any of the parties hereto without, in the case of
Parent and Acquisition Corp., the prior written approval of the Company and,
in
the case of the Company, the prior written approval of Parent.
Section
11.7 No
Third Party
Beneficiaries. Except as set forth in Section
9.1 and Section
11.6, nothing
herein expressed or implied shall be construed to give any person other than
the
parties hereto (and their successors and assigns as permitted herein) any
legal
or equitable rights hereunder.
Section
11.8 Counterparts;
Delivery by
Facsimile. This Agreement may be executed in multiple counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed will be deemed to be an original but all of which taken together
will
constitute one and the same agreement. This Agreement and each other agreement
or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed
and delivered by means of a facsimile machine or by electronic mail, shall
be
treated in all manner and respects as an original agreement or instrument
and
shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of any
party
hereto or to any such agreement or instrument, each other party hereto or
thereto shall re-execute original forms thereof and deliver them to all other
parties. No party hereto or to any such agreement or instrument shall raise
the
use of a facsimile machine or electronic mail to deliver a signature or the
fact
that any signature or agreement or instrument was transmitted or communicated
through the use of a facsimile machine or electronic mail as a defense to
the
formation or enforceability of a contract and each such party forever waives
any
such defense.
37
Section
11.9 Waiver.
At any time
prior to the Effective Time, any party hereto may (a) extend the time for
the
performance of any of the obligations or other acts of the other party hereto;
(b) waive any inaccuracies in the representations and breaches of the warranties
of the other party contained herein or in any document delivered pursuant
hereto; and (c) waive compliance by the other party with any of the agreements
or conditions contained herein. Any such extension or waiver will be valid
only
if set forth in an instrument in writing signed by the party or parties to
be
bound thereby.
Section
11.10 No
Constructive
Waivers. No failure or delay on the part of any party hereto in the
exercise of any right hereunder will impair such right or be construed to
be a
waiver of, or acquiescence in, any breach of any representation, warranty,
agreement or covenant herein, nor will any single or partial exercise of
any
such right preclude other or further exercise thereof or of any other right.
No
waiver by any party of any default, misrepresentation, or breach of warranty
or
covenant hereunder, whether intentional or not, shall be deemed to extend
to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
Section
11.11 Further
Assurances.
The parties hereto shall use their commercially reasonable efforts to do
and
perform or cause to be done and performed all such further acts and things
and
shall execute and deliver all such other agreements, certificates, instruments
or documents as any other party hereto may reasonably request in order to
carry
out fully the intent and purposes of this Agreement and the consummation
of the
transactions contemplated hereby.
Section
11.12 Recitals.
The
recitals set forth above are incorporated herein and, by this reference,
are
made part of this Agreement as if fully set forth herein.
Section
11.13 Headings.
The
headings contained in this Agreement are for reference purposes only and
shall
not affect in any way the meaning or interpretation of this
Agreement.
Section
11.14 Governing
Law. This
Agreement and the agreements, instruments and documents contemplated hereby
shall be governed by and construed and enforced in accordance with the laws
of
the State of Nevada without regard to its conflicts of law
principles.
Section
11.15 Dispute
Resolution.
The parties hereto shall initially attempt to resolve all claims, disputes
or
controversies arising under, out of or in connection with this Agreement
by
conducting good faith negotiations amongst themselves. If the parties hereto
are
unable to resolve the matter following good faith negotiations, the matter
shall
thereafter be resolved by binding arbitration and each party hereto hereby
waives any right it may otherwise have to the resolution of such matter by
any
means other than binding arbitration pursuant to this Section
11.15. Whenever a party shall decide to institute arbitration
proceedings, it shall provide written notice to that effect to the other
parties
hereto. The party giving such notice shall, however, refrain from
instituting the arbitration proceedings for a period of sixty (60) days
following such notice. During this period, the parties shall make
good faith efforts to amicably resolve the claim, dispute or controversy
without
arbitration. Any arbitration hereunder shall be conducted in the
English language under the commercial arbitration rules of the American
Arbitration Association. Any such arbitration shall be conducted in
Las Vegas, Nevada by a panel of three arbitrators: one arbitrator
shall be appointed by each of Parent and Company; and the third shall be
appointed by the American Arbitration Association. The panel of
arbitrators shall have the
38
authority
to grant specific performance. Judgment upon the award so rendered
may be entered in any court having jurisdiction or application may be made
to
such court for judicial acceptance of any award and an order of enforcement,
as
the case may be. In no event shall a demand for arbitration be made
after the date when institution of a legal or equitable proceeding based
on the
claim, dispute or controversy in question would be barred under this Agreement
or by the applicable statute of limitations. The prevailing party in
any arbitration in accordance with this Section 11.15 shall
be entitled to recover from the other party, in addition to any other remedies
specified in the award, all reasonable costs, attorneys’ fees and other expenses
incurred by such prevailing party to arbitrate the claim, dispute or
controversy.
Section
11.16 Interpretation.
(a) When
a reference is made in this
Agreement to a section or article, such reference shall be to a section or
article of this Agreement unless otherwise clearly indicated to the
contrary.
(b) Whenever
the words “include”,
“includes”
or
“including”
are
used in this Agreement, they shall
be deemed to be followed by the words “without limitation.”
(c) The
words “hereof”,
“hereby”,
“herein”
and
“herewith”
and
words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole
and
not to any particular provision of this Agreement, and article, section,
paragraph, exhibit and schedule references are to the articles, sections,
paragraphs, exhibits and schedules of this Agreement unless otherwise
specified.
(d) The
words “knowledge,”
or
“known
to,” or similar terms, when
used in this Agreement to qualify any representation or warranty, refer to
the
knowledge or awareness of certain specific facts or circumstances related
to
such representation or warranty of the persons in the Applicable Knowledge
Group
(as defined herein) which a prudent business person would have obtained after
reasonable investigation or due diligence on the part of any such
person. For the purposes hereof, the “Applicable
Knowledge Group” with
respect to the Company shall be Xxxxxx X. Xxxxxxxx
XX. For the purposes hereof,
the “Applicable
Knowledge Group” with
respect to Parent and the Acquisition Corp. shall be Xx. Xxxxxx Xxx.
(e) The
word “subsidiary”
shall
mean any entity of which at
least a majority of the outstanding shares or other equity interests having
ordinary voting power for the election of directors or comparable managers
of
such entity is owned, directly or indirectly by another entity or
person.
(f) For
purposes of this Agreement,
“ordinary
course of business” means
the ordinary course of business consistent with past custom and practice
(including with respect to quantity and frequency).
(g) The
plural of any defined term shall
have a meaning correlative to such defined term, and words denoting any gender
shall include all genders. Where a word or phrase is defined herein,
each of its other grammatical forms shall have a corresponding
meaning.
(h) A
reference to any legislation or to any
provision of any legislation shall include any modification or re-enactment
thereof, any legislative provision substituted therefor
39
and
all regulations and statutory
instruments issued thereunder or pursuant thereto, unless the context requires
otherwise.
(i) The
parties hereto have participated jointly in the negotiation and drafting
of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties, and no presumption or burden of proof shall arise favoring
or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
[The
remainder of this page is
intentionally left blank]
40
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be
executed as of the date first above written by their respective officers
thereunto duly authorized.
COMPANY:
|
WORLD
SERIES OF GOLF,
INC.
|
By:/s/ Xxxxx Xxxxxxx |
Name:Xxxxx Xxxxxxx |
Title:President and CEO |
PARENT:
|
By:
/s/
Xxxx Xxxxx
Xxxxxx
|
Name:Xxxx Xxxxx Xxxxxx |
Title:President and CEO |
ACQUISITION
CORP.:
|
WSG
ACQUISITION, inc.
|
By:
/s/
Xxxx
Xxxxxx
|
Name:Xxxx Xxxxxx |
Title:President |
41
Exhibit
A
Certificate
of Incorporation of
Surviving Corporation
See
attached.
XXXX
XXXXXX
Secretary
of State
000
Xxxxx Xxxxxx Xxxxxx
Xxxxxx
Xxxx, Xxxxxx 00000-0000
(000)
000 0000
Website:
xxxxxxxxxxxxxxxx.xxx
Articles
of Incorporation
(PURSUANT
TO NRS 78)
ABOVE
SPACE IS FOR OFFICE USE ONLY
|
||||||||||||||
1.
|
Name
of Corporation:
|
WSG Acquisition, Inc. | ||||||||||||
2.
|
Resident
Agent
Name
and Street Address:
(must
be a Nevada address where process may be
served)
|
Xxxx Xxxxx Xxxxxx | ||||||||||||
Name
|
||||||||||||||
00000 Xxxxxx Xxxxx | Xxx Xxxxx | XX | 00000 | |||||||||||
Xxxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Code
|
|||||||||||
Optional
Mailing Address
|
City
|
ST
|
Zip
Code
|
|||||||||||
3.
|
Shares:
(number
of shares corporation authorized to
issue)
|
Number
of shares with
par value:100,000,000
|
Par
value: $
|
0.001 |
Number
of shares without par value:
|
0 | ||||||||
4.
|
Names
&
Addresses
of
Board of
Directors/Trustees:
(attach
additional page if there is more than 3
directors/trustees)
|
1.Xxxx
Xxxxx
Xxxxxx
|
||||||||||||
Name |
|
|||||||||||||
00000 Xxxxxx Xxxxx | Xxx Xxxxx | XX | 00000 | |||||||||||
Xxxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Code
|
|||||||||||
2.
|
||||||||||||||
Name |
|
|||||||||||||
Xxxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Code
|
|||||||||||
3.
|
||||||||||||||
Name |
|
|||||||||||||
Xxxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Code
|
|||||||||||
5.
|
Purpose:(optional-see
instructions)
|
The
purpose of this Corporation shall be: All
lawful
purposes
|
||||||||||||
6.
|
Name,
Address and Signature of
Incorporator.
(attach
additional page if there is more than 1
incorporator)
|
Xxxx Xxxxx Xxxxxx | /s/ Xxxx Xxxxx Xxxxxx | |||||||||||
Name
|
Signature
|
|||||||||||||
Xxxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Code
|
|||||||||||
7.
|
Certificate
of
Acceptance
of
Appointment
of
Resident
Agent:
|
I
hereby accept appointment as Resident Agent for the above named
corporation.
|
||||||||||||
/s/ Xxxx Xxxxx Xxxxxx | 1/10/08 | |||||||||||||
Authorized
Signature of R.A. or On Behalf of R.A. Company
|
Date
|
This
form must be accompanied by appropriate fees.
Nevada
Secretary of State Form 78 Articles 2007
Revised
on: 01/01/07
ARTICLES
OF INCORPORATION
OF
WSG
ACQUISITION, INC.
ARTICLE
I
NAME
The
name
of the corporation shall be WSG Acquisition, Inc. (hereinafter, the
“Corporation”).
REGISTERED
OFFICE
The
initial office of the Corporation shall be 00000 Xxxxxx Xxxxx, Xxx Xxxxx,
XX 00000. The initial registered agent of the Corporation
shall be Xxxx Xxxxx Xxxxxx at 00000 Xxxxxx Xxxxx, Xxx Xxxxx,
XX 00000. The Corporation may, from time to time, in the
manner provided by law, change the resident agent and the registered office
within the State of Nevada. The Corporation may also maintain an office
or
offices for the conduct of its business, either within or without the State
of
Nevada.
ARTICLE
III
CAPITAL
STOCK
Section 1. Authorized
Shares. The aggregate number of shares which the
Corporation shall have authority to issue is one hundred million (100,000,000)
shares, consisting of two classes to be designated, respectively, "Common
Stock"
and "Preferred Stock," with all of such shares having a par value of $.001
per
share. The total number of shares of Common Stock that the Corporation
shall
have authority to issue is ninety million (90,000,000) shares. The total
number
of shares of Preferred Stock that the Corporation shall have authority
to issue
is ten million (10,000,000) shares. The Preferred Stock may be issued in
one or
more series, each series to be appropriately designated by a distinguishing
letter or title, prior to the issuance of any shares thereof. The voting
powers,
designations, preferences, limitations, restrictions, and relative,
participating, optional and other rights, and the qualifications, limitations,
or restrictions thereof, of the Preferred Stock shall hereinafter be prescribed
by resolution of the board of directors pursuant to Section 3 of this
Article III.
Section 2. Common
Stock.
(a) Dividend
Rate. Subject to the rights of holders of any
Preferred Stock having preference as to dividends and except as otherwise
provided by these Articles of Incorporation, as amended from time to time
(hereinafter, the "Articles") or the Nevada
Revised Statues (hereinafter, the “NRS”), the holders
of Common
Stock shall be entitled to receive dividends when, as and if declared by
the
board of directors out of assets legally available therefor.
(b) Voting
Rights. Except as otherwise provided by the NRS,
the holders of the issued and outstanding shares of Common Stock shall
be
entitled to one vote for each share of Common Stock. No holder of shares
of
Common Stock shall have the right to cumulate votes.
(c) Liquidation
Rights. In the event of liquidation, dissolution,
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, subject to the prior rights of holders of Preferred Stock
to share
ratably in the Corporation's assets, the Common Stock and any shares of
Preferred Stock which are not entitled to any preference in liquidation
shall
share equally
and
ratably in the Corporation's assets available for distribution after
giving
effect to any liquidation preference of any shares of Preferred Stock.
A merger,
conversion, exchange or consolidation of the Corporation with or into
any other
person or sale or transfer of all or any part of the assets of the Corporation
(which shall not in fact result in the liquidation of the Corporation
and the
distribution of assets to stockholders) shall not be deemed to be a voluntary
or
involuntary liquidation, dissolution or winding up of the affairs of
the
Corporation.
(d) No
Conversion, Redemption, or Preemptive Rights. The
holders of Common Stock shall not have any conversion, redemption, or preemptive
rights.
(e) Consideration
for Shares. The Common Stock authorized by this
Article shall be issued for such consideration as shall be fixed, from
time to
time, by the board of directors.
Section 3. Preferred
Stock.
(a) Designation. The
board of directors is hereby vested with the authority from time to time
to
provide by resolution for the issuance of shares of Preferred Stock in
one or
more series not exceeding the aggregate number of shares of Preferred Stock
authorized by these Articles, and to prescribe with respect to each such
series
the voting powers, if any, designations, preferences, and relative,
participating, optional, or other special rights, and the qualifications,
limitations, or restrictions relating thereto, including, without limiting
the
generality of the foregoing: the voting rights relating to the shares of
Preferred Stock of any series (which voting rights, if any, may be full
or
limited, may vary over time, and may be applicable generally or only upon
any
stated fact or event); the rate of dividends (which may be cumulative or
noncumulative), the condition or time for payment of dividends and the
preference or relation of such dividends to dividends payable on any other
class
or series of capital stock; the rights of holders of Preferred Stock of
any
series in the event of liquidation, dissolution, or winding up of the affairs
of
the Corporation; the rights, if any, of holders of Preferred Stock of any
series
to convert or exchange such shares of Preferred Stock of such series for
shares
of any other class or series of capital stock or for any other securities,
property, or assets of the Corporation or any subsidiary (including the
determination of the price or prices or the rate or rates applicable to
such
rights to convert or exchange and the adjustment thereof, the time or times
during which the right to convert or exchange shall be applicable, and
the time
or times during which a particular price or rate shall be applicable);
whether
the shares of any series of Preferred Stock shall be subject to redemption
by
the Corporation and if subject to redemption, the times, prices, rates,
adjustments and other terms and conditions of such redemption. The powers,
designations, preferences, limitations, restrictions and relative rights
may be
made dependent upon any fact or event which may be ascertained outside
the
Articles or the resolution if the manner in which the fact or event may
operate
on such series is stated in the Articles or resolution. As used in this
section
"fact or event" includes, without limitation, the existence of a fact or
occurrence of an event, including, without limitation, a determination
or action
by a person, government, governmental agency or political subdivision of
a
government. The board of directors is further authorized to increase or
decrease
(but not below the number of such shares of such series then outstanding)
the
number of shares of any series subsequent to the issuance of shares of
that
series. Unless the board of directors provides to the contrary in the resolution
which fixes the characteristics of a series of Preferred Stock, neither
the
consent by series, or otherwise, of the holders of any outstanding Preferred
Stock nor the consent of the holders of any outstanding Common Stock shall
be
required for the issuance of any new series of Preferred Stock regardless
of
whether the rights and preferences of the new series of Preferred Stock
are
senior or superior, in any way, to the outstanding series of Preferred
Stock or
the Common Stock.
2
any,
relating to the shares of Preferred Stock of such series, and the number
of
shares of Preferred Stock of such series authorized by the board of directors
to
be issued shall be made and signed by an officer of the corporation and
filed in
the manner prescribed by the NRS.
Section 4. Non-Assessment
of Stock. The capital stock of the Corporation,
after the amount of the subscription price has been fully paid, shall not
be
assessable for any purpose, and no stock issued as fully paid shall ever
be
assessable or assessed, and the Articles shall not be amended in this
particular. No stockholder of the Corporation is individually liable for
the
debts or liabilities of the Corporation.
ARTICLE
IV
DIRECTORS
AND OFFICERS
Section 1. Number
of
Directors. The members of the governing board of
the Corporation are styled as directors. The board of directors of the
Corporation shall be elected in such manner as shall be provided in the
bylaws
of the Corporation. The board of directors shall consist of at least one
(1) individual and not more than thirteen (13) individuals. The number
of directors may be changed from time to time in such manner as shall be
provided in the bylaws of the
Corporation.
Section 2. Initial
Directors. The name and post office box or street
address of the director(s) constituting the initial board of directors
is:
Name | Address |
Xxxx Xxxxx Xxxxxx | 00000 Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000 |
Section 3. Limitation
of Liability. The liability of directors and
officers of the Corporation shall be eliminated or limited to the fullest
extent
permitted by the NRS. If the NRS is amended to further eliminate or limit
or
authorize corporate action to further eliminate or limit the liability
of
directors or officers, the liability of directors and officers of the
Corporation shall be eliminated or limited to the fullest extent permitted
by
the NRS, as so amended from time to time.
Section 4. Payment
of
Expenses. In addition to any other rights of
indemnification permitted by the laws of the State of Nevada or as may
be
provided for by the Corporation in its bylaws or by agreement, the expenses
of
officers and directors incurred in defending any threatened, pending, or
completed action, suit or proceeding (including without limitation, an
action,
suit or proceeding by or in the right of the Corporation), whether civil,
criminal, administrative or investigative, involving alleged acts or omissions
of such officer or director in his or her capacity as an officer or director
of
the Corporation or member, manager, or managing member of a predecessor
limited
liability company or affiliate of such limited liability company or while
serving in any capacity at the request of the Corporation as a director,
officer, employee, agent, member, manager, managing member, partner, or
fiduciary of, or in any other capacity for, another corporation or any
partnership, joint venture, trust, or other enterprise, shall be paid by
the
Corporation or through insurance purchased and maintained by the Corporation
or
through other financial arrangements made by the Corporation, as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the officer
or
director to repay the amount if it is ultimately determined by a court
of
competent jurisdiction that he or she is not entitled to be indemnified
by the
Corporation. To the extent that an officer or director is successful on
the
merits in defense of any such action, suit or proceeding, or in the defense
of
any claim, issue or matter therein, the Corporation shall indemnify him
or her
against expenses, including attorneys' fees, actually and reasonably incurred
by
him or her in connection with the defense. Notwithstanding anything to
the
contrary contained herein or in the bylaws, no director or officer may
be
indemnified for expenses incurred in defending any threatened, pending,
or
completed action, suit or proceeding (including without limitation, an
action,
suit or proceeding by or in the right of the Corporation), whether civil,
criminal, administrative or investigative, that such director or officer
incurred in his or her capacity as a stockholder, including, but not limited
to,
in connection with such person being deemed an Unsuitable Person (as defined
in
Article VII hereof).
3
Section 5. Repeal
And
Conflicts. Any repeal or modification of Sections
3 or 4 above approved by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the
liability
of a director or officer of the Corporation existing as of the time of
such
repeal or modification. In the event of any conflict between Sections 3
or 4
above and any other Article of the Articles, the terms and provisions of
Sections 3 or 4 above shall control.
ARTICLE
V
COMBINATIONS
WITH INTERESTED STOCKHOLDERS
At
such
time, if any, as the Corporation becomes a "resident domestic corporation",
as
that term is defined in NRS 78.427, the Corporation shall not be subject
to, or
governed by, any of the provisions in NRS 78.411 to 78.444, inclusive,
as may be
amended from time to time, or any successor statute.
ARTICLE
VI
BYLAWS
The
board
of directors is expressly granted the exclusive power to make, amend, alter,
or
repeal the bylaws of the Corporation pursuant to NRS 78.120.
IN
WITNESS WHEREOF, the Corporation has caused these articles of incorporation to
be executed in its name by its Incorporator on January10, 2008.
/s/
Xxxx Xxxxx
Xxxxxx
Xxxx Xxxxx Xxxxxx
4
Exhibit
B
By-Laws
of Surviving
Corporation
See
attached.
BY-LAWS
OF
WSG
ACQUISITION, INC.
(A
NEVADA CORPORATION)
ARTICLE
I
OFFICES
Section
1. Registered
Office. The registered office of the corporation in the State of Nevada
shall be at such place as the board shall resolve.
Section
2. Other
Offices. The corporation shall also have and maintain an
office or principal place of business at such place as may be fixed by
the Board
of Directors, and may also have offices at such other places, both within
and
without the State of Nevada as the Board of Directors may from time to
time
determine or the business of the corporation may require.
ARTICLE
II
CORPORATE
SEAL
Section
3. Corporate
Seal. The corporate seal shall consist of a die bearing the
name of the corporation and the inscription, "Corporate Seal-Nevada."
Said seal
may be used by causing it or a facsimile thereof to be impressed or affixed
or
reproduced or otherwise.
ARTICLE
III
STOCKHOLDERS'
MEETINGS
Section
4. Place of
Meetings. Meetings of the stockholders of the corporation
shall be held at such place, either within or without the State of Nevada,
as
may be designated from time to time by the Board of Directors, or, if
not so
designated, then at the office of the corporation required to be maintained
pursuant to Section 2 hereof.
Section
5. Annual Meeting.
(a)
The annual meeting of the stockholders of the corporation, for the purpose
of
election of directors and for such other business as may lawfully come
before
it, shall be held on such date and at such time as may be designated
from time
to time by the Board of Directors.
(b)
At an annual meeting of the stockholders, only such business shall be
conducted
as
shall
have been properly brought before the meeting. To be properly brought
before an
annual meeting, business must be: (A) specified in the notice of meeting
(or any
supplement thereto) given by or at the direction of the Board of Directors,
(B)
otherwise properly brought before the meeting by or at the direction
of the
Board of Directors, or (C) otherwise properly brought before the meeting
by a
stockholder. For business to be properly brought before an annual meeting
by a
stockholder, the stockholder must have given timely notice thereof in
writing to
the Secretary of the corporation. To be timely, a stockholder's notice
must be
delivered to or mailed and received at the principal executive offices
of the
corporation not later than the close of business on the sixtieth (60th)
day nor
earlier than the close of business on the ninetieth (90th) day prior
to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that no annual meeting was held in the previous year
or the
date of the annual meeting has been changed by more than thirty (30)
days from
the date contemplated at the time of the previous year's proxy statement,
notice
by the stockholder to be timely must be so received not earlier than
the close
of business on the ninetieth (90th) day prior to such annual meeting
and not
later than the close of business on the later of the sixtieth (60th)
day prior
to such annual meeting or, in the event public announcement of the date
of such
annual meeting is first made by the corporation fewer than seventy (70)
days
prior to the date of such annual meeting, the close of business on the
tenth
(10th) day following the day on which public announcement of the date
of such
meeting is first made by the corporation. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes
to bring
before the annual meeting: (i) a brief description of the business desired
to be
brought before the annual meeting and the reasons for conducting such
business
at the annual meeting, (ii) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business, (iii)
the class
and number of shares of the corporation which are beneficially owned
by the
stockholder, (iv) any material interest of the stockholder in such business
and
(v) any other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended
(the "1934 Act"), in his capacity as a proponent to a stockholder proposal.
Notwithstanding the foregoing, in order to include information with respect
to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice as required by
the
regulations promulgated under the 1934 Act. Notwithstanding anything
in these
Bylaws to the contrary, no business shall be conducted at any annual
meeting
except in accordance with the procedures set forth in this paragraph
(b). The
chairman of the annual meeting shall, if the facts warrant, determine
and
declare at the meeting that business was not properly brought before
the meeting
and in accordance with the provisions of this paragraph (b), and, if
he should
so determine, he shall so declare at the meeting that any such business
not
properly brought before the meeting shall not be transacted.
(c)
Only persons who are confirmed in accordance with the procedures set
forth in
this paragraph (c) shall be eligible for election as directors. Nominations
of
persons for election to the Board of Directors of the corporation may
be made at
a meeting of stockholders by or at the direction of the Board of Directors
or by
any stockholder of the corporation entitled to vote in the election of
directors
at the meeting who complies with the notice procedures set forth in this
paragraph (c). Such nominations, other than those made by or at the direction
of
the Board of Directors, shall be made pursuant to timely notice in writing
to
the Secretary of the corporation in accordance with the provisions of
paragraph
(b) of this Section 5. Such stock¬holder's notice shall
set
forth
(i) as to each person, if any, whom the stockholder proposes to nominate
for
election or re-election as a director: (A) the name, age, business address
and
residence address of such person, (B) the principal occupation or employment
of
such person, (c) the class and number of shares of the corporation which
are
beneficially owned by such person, (D) a description of all arrangements
or
understandings between the stockholder and each nominee and any other
person or
persons (naming such person or persons) pursuant to which the nominations
are to
be made by the stockholder, and (E) any other information relating to
such
person that is required to be disclosed in solicitations of proxies for
election
of directors, or is otherwise required, in each case pursuant to Regulation
14A
under the 1934 Act (including without limitation such person's written
consent
to being named in the proxy statement, if any, as a nominee and to serving
as a
director if elected); and (ii) as to such stockholder giving notice,
the
information required to be provided pursuant to paragraph (b) of this
Section
5. At the request of the Board of Directors, any person nominated by
a stockholder for election as a director shall furnish to the Secretary
of the
corporation that information required to be set forth in the stockholder's
notice of nomination which pertains to the nominee. No person shall
be eligible for election as a director of the corporation unless nominated
in
accordance with the procedures set forth in this paragraph (c). The
chairman of the meeting shall, if the facts warrant, determine and declare
at
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so
declare
at the meeting, and the defective nomination shall be disregarded.
(d)
For purposes of this Section 5, "public announcement" shall mean disclosure
in a
press release reported by the Dow Xxxxx News Service, Associated Press
or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section
13,
14 or 15(d) of the Exchange Act.
Section
6. Special Meetings.
(a)
Special
meetings of
the stockholders of the corporation may be called, for any purpose or
purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief
Executive Officer, or (iii) the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether
or
not there exist any vacancies in previously authorized directorships
at the time
any such resolution is presented to the Board of Directors for adoption),
and
shall be held at such place, on such date, and at such time, as the Board
of
Directors shall determine.
(b) If a
special meeting is called by any person or persons other than the Board
of
Directors, the request shall be in writing, specifying the general nature
of the
business proposed to be transacted, and shall be delivered personally
or sent by
registered mail or by tele-graphic or other facsimile transmission to
the
Chairman of the Board of Directors, the Chief Executive Officer, or the
Secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The Board of Directors
shall
determine the time and place of such special meeting, which shall be
held not
less than thirty-five (35) nor more than one hundred twenty (120) days
after the
date of the receipt of the request. Upon determination of the time and
place of
the meeting, the officer receiving the request shall cause notice to
be given to
the stockholders entitled to vote, in accordance with the provisions
of Section
7 of these Bylaws. If the
notice
is
not given within sixty (60) days after the receipt of the request, the
person or
persons requesting the meeting may set the time and place of the meeting
and
give the notice. Nothing contained in this paragraph (b) shall be construed
as
limiting, fixing, or affecting the time when a meeting of stockholders
called by
action of the Board of Directors may be held.
Section
7. Notice of
Meetings. Except as otherwise provided by law or the Articles
of Incorporation, written notice of each meeting of stockholders shall
be given
not less than ten (10) nor more than sixty (60) days before the date
of the
meeting to each stockholder entitled to vote at such meeting, such notice
to
specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, signed by the person entitled
to notice
thereof, either before or after such meeting, and will be waived by any
stockholder by his attendance thereat in person or by proxy, except when
the
stockholder attends a meeting for the express purpose of objecting, at
the
beginning of the meeting, to the transaction of any business because
the meeting
is not lawfully called or convened. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such meeting
in all
respects as if due notice thereof had been given.
Section
8. Quorum. At all meetings of stockholders, except
where otherwise provided by statute or by the Articles of Incorporation,
or by
these Bylaws, the presence, in person or by proxy duly authorized, of
the holder
or holders of not less than fifty percent (50%) of the outstanding shares
of
stock entitled to vote shall constitute a quorum for the transaction
of
business. In the absence of a quorum, any meeting of stockholders may
be adjourned, from time to time, either by the chairman of the meeting
or by
vote of the holders of a majority of the shares represented thereat,
but no
other business shall be transacted at such meeting. The stockholders
present at a duly called or convened meeting, at which a quorum is present,
may
continue to transact business until adjournment, notwithstanding the
withdrawal
of enough stockholders to leave less than a quorum. Except as
otherwise provided by law, the Articles of Incorporation or these Bylaws,
all
action taken by the holders of a majority of the votes cast, excluding
abstentions, at any meeting at which a quorum is present shall be valid
and
binding upon the corporation; provided, however, that directors shall
be elected
by a plurality of the votes of the shares present in person or represented
by
proxy at the meeting and entitled to vote on the election of
directors. Where a separate vote by a class or classes or series is
required, except where otherwise provided by the statute or by the Articles
of
Incorporation or these Bylaws, a majority of the outstanding shares of
such
class or classes or series, present in person or represented by proxy,
shall
constitute a quorum entitled to take action with respect to that vote
on that
matter and, except where otherwise provided by the statute or by the
Articles of
Incorporation or these Bylaws, the affirmative vote of the majority (plurality,
in the case of the election of directors) of the votes cast, including
abstentions, by the holders of shares of such class or classes or series
shall
be the act of such class or classes or series.
Section
9. Adjournment and
Notice of Adjourned Meetings. Any meeting of stockholders,
whether annual or special, may be adjourned from time to time either
by the
chairman of the meeting or by the vote of a majority of the shares casting
votes, excluding abstentions. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the
time and
place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the corporation may transact any
business which might have been
transacted
at the original meeting. If the adjournment is for more than thirty
(30) days or if after the adjournment a new record date is fixed for
the
adjourned meeting, a notice of the adjourned meeting shall be given to
each
stockholder of record entitled to vote at the meeting.
Section
10. Voting
Rights. For the purpose of determining those stockholders
entitled to vote at any meeting of the stockholders, except as otherwise
provided by law, only persons in whose names shares stand on the stock
records
of the corporation on the record date, as provided in Section 12 of these
Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote shall have the right to
do so either in person or by an agent or agents authorized by a proxy
granted in
accordance with Nevada law. An agent so appointed need not be a
stockholder. No proxy shall be voted after three (3) years from its date
of
creation unless the proxy provides for a longer period.
Section
11. Joint Owners
of Stock. If shares or other securities having voting power
stand of record in the names of two (2) or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by
the
entirety, or otherwise, or if two (2) or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given
written
notice to the contrary and is furnished with a copy of the instrument
or order
appointing them or creating the relationship wherein it is so provided,
their
acts with respect to voting shall have the following effect: (a) if only
one (1)
votes, his act binds all; (b) if more than one (1) votes, the act of
the
majority so voting binds all; (c) if more than one (1) votes, but the
vote is
evenly split on any particular matter, each faction may vote the securities
in
question proportionally, or may apply to the Nevada Court of Chancery
for relief
as provided in the General Corporation Law of Nevada, Section
217(b). If the instrument filed with the Secretary shows that any
such tenancy is held in unequal interests, a majority or even-split for
the
purpose of subsection (c) shall be a majority or even-split in
interest.
Section
12. List of
Stockholders. The Secretary shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of
the
stockholders entitled to vote at said meeting, arranged in alphabetical
order,
showing the address of each stockholder and the number of shares registered
in
the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten
(10) days
prior to the meeting, either at a place within the city where the meeting
is to
be held, which place shall be specified in the notice of the meeting,
or, if not
specified, at the place where the meeting is to be held. The list
shall be produced and kept at the time and place of meeting during the
whole
time thereof and may be inspected by any stockholder who is
present.
Section
13. Action Without
Meeting. No action shall be taken by the stockholders except at an
annual or special meeting of stockholders called in accordance with these
Bylaws, or by the written consent of the stockholders setting forth the
action
so taken and signed by the holders of outstanding stock having not less
than the
minimum number of votes that would be necessary to authorize or take
such action
at a meeting at which all shares entitled to vote upon were present and
voted.
Section
14. Organization.
(a)
At every meeting of stockholders, the Chairman of the Board of Directors,
or, if
a Chairman has not been appointed or is absent, the President, or, if
the
President is absent, a chairman of the meeting chosen by a majority in
interest
of the stockholders entitled to vote, present in person or by proxy,
shall act
as chairman. The Secretary, or, in his absence, an Assistant Secretary
directed
to do so by the President, shall act as secretary of the meeting.
(b)
The Board of Directors of the corporation shall be entitled to make such
rules
or regulations for the conduct of meetings of stockholders as it shall
deem
necessary, appropriate or convenient. Subject to such rules and regulations
of
the Board of Directors, if any, the chairman of the meeting shall have
the right
and authority to prescribe such rules, regulations and procedures and
to do all
such acts as, in the judgment of such chairman, are necessary, appropriate
or
convenient for the proper conduct of the meeting, including, without
limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those
present,
limitations on participation in such meeting to stockholders of record
of the
corporation and their duly authorized and constituted proxies and such
other
persons as the chairman shall permit, restrictions on entry to the meeting
after
the time fixed for the commencement thereof, limitations on the time
allotted to
questions or comments by participants and regulation of the opening and
closing
of the polls for balloting on matters which are to be voted on by ballot.
Unless
and to the extent determined by the Board of Directors or the chairman
of the
meeting, meetings of stockholders shall not be required to be held in
accordance
with rules of parliamentary procedure.
ARTICLE
IV
DIRECTORS
Section
15. Number and
Qualification. The authorized number of directors of the
corporation shall be not less than one (1) nor more than thirteen (13)
as fixed
from time to time by resolution of the Board of Directors; provided that
no
decrease in the number of directors shall shorten the term of any incumbent
directors. Directors need not be stockholders unless so required by
the Articles of Incorporation. If for any cause, the directors shall
not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders called
for
that purpose in the manner provided in these Bylaws.
Section
16. Powers. The powers of the corporation shall be
exercised, its business conducted and its property controlled by the
Board of
Directors, except as may be otherwise provided by statute or by the Articles
of
Incorporation.
Section
17. Election and
Term of Office of Directors. Members of the Board of Directors
shall hold office for the terms specified in the Articles of Incorporation,
as
it may be amended from time to time, and until their successors have
been
elected as provided in the Articles of Incorporation.
Section
18. Vacancies. Unless otherwise provided in the
Articles of Incorporation, any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or
other
causes and any newly created directorships resulting from any increase
in the
number of directors, shall unless the Board of Directors determines by
resolution that any such vacancies or newly created directorships shall
be
filled by stockholder vote, be filled only by the affirmative vote of
a majority
of the directors then in office, even though less than a quorum of the
Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the
director
for which the vacancy was created or occurred and until such director's
successor shall have been elected and qualified. A vacancy in the
Board of Directors shall be deemed to exist under this Bylaw in the case
of the
death, removal or resignation of any director.
Section
19. Resignation. Any director may resign at any
time by delivering his written resignation to the Secretary, such resignation
to
specify whether it will be effective at a particular time, upon receipt
by the
Secretary or at the pleasure of the Board of Directors. If no such
specification is made, it shall be deemed effective at the pleasure of
the Board
of Directors. When one or more directors shall resign from the Board
of Directors, effective at a future date, a majority of the directors
then in
office, including those who have so resigned, shall have power to fill
such
vacancy or vacancies, the vote thereon to take effect when such resignation
or
resignations shall become effective, and each director so chosen shall
hold
office for the unexpired portion of the term of the director whose place
shall
be vacated and until his successor shall have been duly elected and
qualified.
Section
20. Removal. Subject to the Articles of
Incorporation, any director may be removed by the affirmative vote of
the
holders of a majority of the outstanding shares of the Corporation then
entitled
to vote, with or without cause.
Section
21. Meetings.
(a)
Annual Meetings. The annual meeting of the Board of Directors shall be
held
immediately after the annual meeting of stockholders and at the place
where such
meeting is held. No notice of an annual meeting of the Board of Directors
shall
be necessary and such meeting shall be held for the purpose of electing
officers
and transacting such other business as may lawfully come before it.
(b)
Regular Meetings. Except as hereinafter otherwise provided, regular meetings
of
the Board of Directors shall be held in the office of the corporation
required
to be maintained pursuant to Section 2 hereof. Unless otherwise restricted
by
the Articles of Incorporation, regular meetings of the Board of Directors
may
also be held at any place within or without the state of Nevada which
has been
designated by resolution of the Board of Directors or the written consent
of all
directors.
(c)
Special Meetings. Unless otherwise restricted by the Articles of Incorporation,
special meetings of the Board of Directors may be held at any time and
place
within or without the State of Nevada whenever called by the Chairman
of the
Board, the President or any two of the directors.
(d)
Telephone Meetings. Any member of the Board of Directors, or of any committee
thereof, may participate in a meeting by means of conference telephone
or
similar communications equipment by means of which all persons participating
in
the meeting can hear each other, and participation in a meeting by such
means
shall constitute presence in person at such meeting.
(e)
Notice of Meetings. Notice of the time and place of all special meetings
of the
Board of Directors shall be orally or in writing, by telephone, facsimile,
telegraph or telex, during normal business hours, at least twenty-four
(24)
hours before the date and time of the meeting, or sent in writing to
each
director by first class mail, charges prepaid, at least three (3) days
before
the date of the meeting. Notice of any meeting may be waived in writing
at any
time before or after the meeting and will be waived by any director by
attendance thereat, except when the director attends the meeting for
the express
purpose of objecting, at the beginning of the meeting, to the transaction
of any
business because the meeting is not lawfully called or convened.
(f)
Waiver of Notice. The transaction of all business at any meeting of the
Board of
Directors, or any committee thereof, however called or noticed, or wherever
held, shall be as valid as though had at a meeting duly held after regular
call
and notice, if a quorum be present and if, either before or after the
meeting,
each of the directors not present shall sign a written waiver of notice.
All
such waivers shall be filed with the corporate records or made a part
of the
minutes of the meeting.
Section
22. Quorum and
Voting.
(a)
Unless the Articles of Incorporation requires a greater number and except
with
respect to indemnification questions arising under Section 43 hereof,
for which
a quorum shall be one-third of the exact number of directors fixed from
time to
time in accordance with the Articles of Incorporation, a quorum of the
Board of
Directors shall consist of a majority of the exact number of directors
fixed
from time to time by the Board of Directors in accordance with the Articles
of
Incorporation provided, however, at any meeting whether a quorum be present
or
otherwise, a majority of the directors present may adjourn from time
to time
until the time fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b)
At each meeting of the Board of Directors at which a quorum is present,
all
questions and business shall be determined by the affirmative vote of
a majority
of the directors present, unless a different vote be required by law,
the
Articles of Incorporation or these Bylaws.
Section
23. Action Without
Meeting. Unless otherwise restricted by the Articles of
Incorporation or these Bylaws, any action required or permitted to be
taken at
any meeting of the Board of Directors or of any committee thereof may
be taken
without a meeting, if all members of the Board of Directors or committee,
as the
case may be, consent thereto in writing, and such writing or writings
are filed
with the minutes of proceedings of the Board of Directors or
committee.
Section
24. Fees and
Compensation. Directors shall be entitled to such compensation
for their services as may be approved by the Board of Directors, including,
if
so approved, by resolution of the Board of Directors, a fixed sum and
expenses
of attendance, if any, for attendance at each regular or special meeting
of the
Board of Directors and at any meeting of a committee of the Board of
Directors. Nothing herein contained shall be construed to preclude
any director from serving the
corporation
in any other capacity as an officer, agent, employee, or otherwise and
receiving
compensation therefor.
Section
25. Committees.
(a)
Executive Committee. The Board of Directors may by resolution passed
by a
majority of the whole Board of Directors appoint an Executive Committee
to
consist of one (1) or more members of the Board of Directors. The Executive
Committee, to the extent permitted by law and provided in the resolution
of the
Board of Directors shall have and may exercise all the powers and authority
of
the Board of Directors in the management of the business and affairs
of the
corporation, including without limitation the power or authority to declare
a
dividend, to authorize the issuance of stock and to adopt a certificate
of
ownership and merger, and may authorize the seal of the corporation to
be
affixed to all papers which may require it; but no such committee shall
have the
power or authority in reference to amending the Articles of Incorporation
(except that a committee may, to the extent authorized in the resolution
or
resolutions providing for the issuance of shares of stock adopted by
the Board
of Directors fix the designations and any of the preferences or rights
of such
shares relating to dividends, redemption, dissolution, any distribution
of
assets of the corporation or the conversion into, or the exchange of
such shares
for, shares of any other class or classes or any other series of the
same or any
other class or classes of stock of the corporation or fix the number
of shares
of any series of stock or authorize the increase or decrease of the shares
of
any series), adopting an agreement of merger or consolidation, recommending
to
the stockholders the sale, lease or exchange of all or substantially
all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the
bylaws of the corporation.
(b)
Other Committees. The Board of Directors may, by resolution passed by
a majority
of the whole Board of Directors, from time to time appoint such other
committees
as may be permitted by law. Such other committees appointed by the Board
of
Directors shall consist of one (1) or more members of the Board of Directors
and
shall have such powers and perform such duties as may be prescribed by
the
resolution or resolutions creating such committees, but in no event shall
such
committee have the powers denied to the Executive Committee in these
Bylaws.
(c)
Term. Each member of a committee of the Board of Directors shall serve
a term on
the committee coexistent with such member's term on the Board of Directors.
The
Board of Directors, subject to the provisions of subsections (a) or (b)
of this
Bylaw may at any time increase or decrease the number of members of a
committee
or terminate the existence of a committee. The membership of a committee
member
shall terminate on the date of his death or voluntary resignation from
the
committee or from the Board of Directors. The Board of Directors may at any
time
for any reason remove any individual committee member and the Board of
Directors
may fill any committee vacancy created by death, resignation, removal
or
increase in the number of members of the committee. The Board of Directors
may
designate one or more directors as alternate members of any committee,
who may
replace any absent or disqualified member at any meeting of the committee,
and,
in addition, in the absence or disqualification of any member of a committee,
the member or members thereof present at any meeting and not disqualified
from
voting, whether or not he or they
constitute
a quorum, may unanimously appoint another member of the Board of Directors
to
act at the meeting in the place of any such absent or disqualified
member.
(d)
Meetings. Unless the Board of Directors shall otherwise provide, regular
meetings of the Executive Committee or any other committee appointed
pursuant to
this Section 25 shall be held at such times and places as are determined
by the
Board of Directors, or by any such committee, and when notice thereof
has been
given to each member of such committee, no further notice of such regular
meetings need be given thereafter. Special meetings of any such committee
may be
held at any place which has been determined from time to time by such
committee,
and may be called by any director who is a member of such committee,
upon
written notice to the members of such committee of the time and place
of such
special meeting given in the manner provided for the giving of written
notice to
members of the Board of Directors of the time and place of special meetings
of
the Board of Directors. Notice of any special meeting of any committee
may be
waived in writing at any time before or after the meeting and will be
waived by
any director by attendance thereat, except when the director attends
such
special meeting for the express purpose of objecting, at the beginning
of the
meeting, to the transaction of any business because the meeting is not
lawfully
called or convened. A majority of the authorized number of members of
any such
committee shall constitute a quorum for the transaction of business,
and the act
of a majority of those present at any meeting at which a quorum is present
shall
be the act of such committee.
Section
26. Organization. At every meeting of the
directors, the Chairman of the Board of Directors, or, if a Chairman
has not
been appointed or is absent, the President, or if the President is absent,
the
most senior Vice President, or, in the absence of any such officer, a
chairman
of the meeting chosen by a majority of the directors present, shall preside
over
the meeting. The Secretary, or in his absence, an Assistant Secretary
directed to do so by the President, shall act as secretary of the
meeting.
ARTICLE
V
OFFICERS
Section
27. Officers
Designated. The officers of the corporation shall include, if
and when designated by the Board of Directors, the Chairman of the Board
of
Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer, the Treasurer,
the
Controller, all of whom shall be elected at the annual organizational
meeting of
the Board of Directors. The Board of Directors may also appoint one
or more Assistant Secretaries, Assistant Treasurers, Assistant Controllers
and
such other officers and agents with such powers and duties as it shall
deem
necessary. The Board of Directors may assign such additional titles
to one or more of the officers as it shall deem appropriate. Any one
person may hold any number of offices of the corporation at any one time
unless
specifically prohibited therefrom by law. The salaries and other
compensation of the officers of the corporation shall be fixed by or
in the
manner designated by the Board of Directors.
Section
28. Tenure and
Duties of Officers.
(a)
General. All officers shall hold office at the pleasure of the Board
of
Directors and until their successors shall have been duly elected and
qualified,
unless sooner removed. Any officer elected or appointed by the Board
of
Directors may be removed at any time by the Board of Directors. If the
office of
any officer becomes vacant for any reason, the vacancy may be filled
by the
Board of Directors.
(b)
Duties of Chairman of the Board of Directors. The Chairman of the Board
of
Directors, when present, shall preside at all meetings of the stockholders
and
the Board of Directors. The Chairman of the Board of Directors shall
perform
other duties commonly incident to his office and shall also perform such
other
duties and have such other powers as the Board of Directors shall designate
from
time to time. If there is no President, then the Chairman of the Board
of
Directors shall also serve as the Chief Executive Officer of the corporation
and
shall have the powers and duties prescribed in paragraph (c) of this
Section
28.
(c)
Duties of President. The President shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors, unless the
Chairman
of the Board of Directors has been appointed and is present. Unless some
other
officer has been elected Chief Executive Officer of the corporation,
the
President shall be the chief executive officer of the corporation and
shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation.
The
President shall perform other duties commonly incident to his office
and shall
also perform such other duties and have such other powers as the Board
of
Directors shall designate from time to time.
(d)
Duties of Vice Presidents. The Vice Presidents may assume and perform
the duties
of the President in the absence or disability of the President or whenever
the
office of President is vacant. The Vice Presidents shall perform other
duties
commonly incident to their office and shall also perform such other duties
and
have such other powers as the Board of Directors or the President shall
designate from time to time.
(e)
Duties of Secretary. The Secretary shall attend all meetings of the stockholders
and of the Board of Directors and shall record all acts and proceedings
thereof
in the minute book of the corporation. The Secretary shall give notice
in
conformity with these Bylaws of all meetings of the stockholders and
of all
meetings of the Board of Directors and any committee thereof requiring
notice.
The Secretary shall perform all other duties given him in these Bylaws
and other
duties commonly incident to his office and shall also perform such other
duties
and have such other powers as the Board of Directors shall designate
from time
to time. The President may direct any Assistant Secretary to assume and
perform
the duties of the Secretary in the absence or disability of the Secretary,
and
each Assistant Secretary shall perform other duties commonly incident
to his
office and shall also perform such other duties and have such other powers
as
the Board of Directors or the President shall designate from time to
time.
(f)
Duties of Chief Financial Officer. The Chief Financial Officer shall
keep or
cause to be kept the books of account of the corporation in a thorough
and
proper manner and shall render statements of the financial affairs of
the
corporation in such form and as often as required by the Board of Directors
or
the President. The Chief Financial Officer, subject to the order of the
Board
of
Directors,
shall have the custody of all funds and securities of the corporation.
The Chief
Financial Officer shall perform other duties commonly incident to his
office and
shall also perform such other duties and have such other powers as the
Board of
Directors or the President shall designate from time to time. The President
may
direct the Treasurer or any Assistant Treasurer, or the Controller or
any
Assistant Controller to assume and perform the duties of the Chief Financial
Officer in the absence or disability of the Chief Financial Officer,
and each
Treasurer and Assistant Treasurer and each Controller and Assistant Controller
shall perform other duties commonly incident to his office and shall
also
perform such other duties and have such other powers as the Board of
Directors
or the President shall designate from time to time.
Section
29. Delegation of
Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officer or
agent,
notwithstanding any provision hereof.
Section
30. Resignations. Any officer may resign at any
time by giving written notice to the Board of Directors or to the President
or
to the Secretary. Any such resignation shall be effective when
received by the person or persons to whom such notice is given, unless
a later
time is specified therein, in which event the resignation shall become
effective
at such later time. Unless otherwise specified in such notice, the
acceptance of any such resignation shall not be necessary to make it
effective. Any resignation shall be without prejudice to the rights,
if any, of the corporation under any contract with the resigning
officer.
Section
31. Removal. Any officer may be removed from office
at any time, either with or without cause, by the affirmative vote of
a majority
of the directors in office at the time, or by the unanimous written consent
of
the directors in office at the time, or by any committee or superior
officers
upon whom such power of removal may have been conferred by the Board
of
Directors.
ARTICLE
VI
EXECUTION
OF CORPORATE INSTRUMENTS AND VOTING
OF
SECURITIES OWNED BY THE CORPORATION
Section
32. Execution of
Corporate Instrument. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer
or
officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on
behalf of
the corporation, except where otherwise provided by law or these Bylaws,
and
such execution or signature shall be binding upon the corporation.
Unless
otherwise specifically
determined by the Board of Directors or otherwise required by law, promissory
notes, deeds of trust, mortgages and other evidences of indebtedness
of the
corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the corporation,
shall be executed, signed or endorsed by the Chairman of the Board of
Directors,
or the President or any Vice President, and by the Secretary or Treasurer
or any
Assistant Secretary or Assistant Treasurer. All other instruments and
documents
requiting
the corporate signature, but not requiring the corporate seal, may be
executed
as aforesaid or in such other manner as may be directed by the Board
of
Directors.
All
checks and drafts drawn on banks or
other depositaries on funds to the credit of the corporation or in special
accounts of the corporation shall be signed by such person .or persons
as the
Board of Directors shall authorize so to do.
Unless
authorized or ratified by the
Board of Directors or within the agency power of an officer, no officer,
agent
or employee shall have any power or authority to bind the corporation
by any
contract or engagement or to pledge its credit or to render it liable
for any
purpose or for any amount.
Section
33. Voting of
Securities Owned by the Corporation. All stock and other
securities of other corporations owned or held by the corporation for
itself, or
for other parties in any capacity, shall be voted, and all proxies with
respect
thereto shall be executed, by the person authorized so to do by resolution
of
the Board of Directors, or, in the absence of such authorization, by
the
Chairman of the Board of Directors, the Chief Executive Officer, the
President,
or any Vice President.
ARTICLE
VII
SHARES
OF STOCK
Section
34. Form and
Execution of Certificates. Certificates for the shares of
stock of the corporation shall be in such form as is consistent with
the
Articles of Incorporation and applicable law. Every holder of stock
in the corporation shall be entitled to have a certificate signed by
or in the
name of the corporation by the Chairman of the Board of Directors, or
the
President or any Vice President and by the Treasurer or Assistant Treasurer
or
the Secretary or Assistant Secretary, certifying the number of shares
owned by
him in the corporation. Any or all of the signatures on the
certificate may be facsimiles. In case any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed
upon a
certificate shall have ceased to be such officer, transfer agent, or
registrar
before such certificate is issued, it may be issued with the same effect
as if
he were such officer, transfer agent, or registrar at the date of
issue. Each certificate shall state upon the face or back thereof, in
full or in summary, all of the powers, designations, preferences, and
rights,
and the limitations or restrictions of the shares authorized to be issued
or
shall, except as otherwise required by law, set forth on the face or
back a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional, or other special rights of each class of stock
or
series thereof and the qualifications, limitations or restrictions of
such
preferences and/or
rights. Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner
thereof
a written notice containing the information required to be set forth
or stated
on certificates pursuant to this section or otherwise required by law
or with
respect to this section a statement that the corporation will furnish
without
charge to each stockholder who so requests the powers, designations,
preferences
and relative participating, optional or other special rights of each
class of
stock or series thereof and the qualifications, limitations or restrictions
of
such preferences
and/or
rights. Except as otherwise expressly provided by law, the rights and
obligations of the holders of certificates representing stock of the
same class
and series shall be identical.
Section
35. Lost
Certificates. A new certificate or certificates shall be
issued in place of any certificate or certificates theretofore issued
by the
corporation alleged to have been lost, stolen, or destroyed, upon the
making of
an affidavit of that fact by the person claiming the certificate of stock
to be
lost, stolen, or destroyed. The corporation may require, as a
condition precedent to the issuance of a new certificate or certificates,
the
owner of such lost, stolen, or destroyed certificate or certificates,
or his
legal representative, to advertise the same in such manner as it shall
require
or to give the corporation a surety bond in such form and amount as it
may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen, or
destroyed.
Section
36. Transfers.
(a)
Transfers of record of shares of stock of the corporation shall be made
only
upon its books by the holders thereof, in person or by attorney duly
authorized,
and upon the surrender of a properly endorsed certificate or certificates
for a
like number of shares.
(b)
The corporation shall have power to enter into and perform any agreement
with
any number of stockholders of any one or more classes of stock of the
corporation to restrict the transfer of shares of stock of the corporation
of
any one or more classes owned by such stockholders in any manner not
prohibited
by the General Corporation Law of Nevada.
Section
37. Fixing Record
Dates.
(a)
In order that the corporation may determine the stockholders entitled
to notice
of or to vote at any meeting of stockholders or any adjournment thereof,
the
Board of Directors may fix, in advance, a record date, which record date
shall
not precede the date upon which the resolution fixing the record date
is adopted
by the Board of Directors, and which record date shall not be more than
sixty
(60) nor less than ten (10) days before the date of such meeting. If
no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall
be at the close of business on the day next preceding the day on which
notice is
given, or if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders
shall
apply to any adjournment of the meeting; provided, however, that the
Board of
Directors may fix a new record date for the adjourned meeting.
(b)
In order that the corporation may determine the stockholders entitled
to receive
payment of any dividend or other distribution or allotment of any rights
or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful
action,
the Board of Directors may fix, in advance, a record date, which record
date
shall not precede the date upon which the resolution fixing the record
date is
adopted, and which record date shall be not more than sixty (60) days
prior to
such action. If no record date is filed, the record date for determining
stockholders for any such purpose shall be at the close of business on
the day
on which the Board of Directors adopts the resolution relating
thereto.
Section
38. Registered
Stockholders. The corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner
of shares
to receive dividends, and to vote as such owner, and shall not be bound
to
recognize any equitable or other claim to or interest in such share or
shares on
the part of any other person whether or not it shall have express or
other
notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE
VIII
OTHER
SECURITIES OF THE CORPORATION
Section
39. Execution of
Other Securities. All bonds, debentures and other corporate
securities of the corporation, other than stock certificates (covered
in Section
34), may be signed by the Chairman of the Board of Directors, the President
or
any Vice President, or such other person as may be authorized by the
Board of
Directors, and the corporate seal impressed thereon or a facsimile of
such seal
imprinted thereon and attested by the signature of the Secretary or an
Assistant
Secretary, or the Chief Financial Officer or Treasurer or an Assistant
Treasurer; provided, however, that where any such bond, debenture or
other
corporate security shall be authenticated by the manual signature, or
where
permissible facsimile signature, of a trustee under an indenture pursuant
to
which such bond, debenture or other corporate security shall be issued,
the
signatures of the persons signing and attesting the corporate seal on
such bond,
debenture or other corporate security may be the imprinted facsimile
of the
signatures of such persons. Interest coupons appertaining to any such
bond, debenture or other corporate security, authenticated by a trustee
as
aforesaid, shall be signed by the Treasurer or an Assistant Treasurer
of the
corporation or such other person as may be authorized by the Board of
Directors,
or bear imprinted thereon the facsimile signature of such person. In
case any officer who shall have signed or attested any bond, debenture
or other
corporate security, or whose facsimile signature shall appear thereon
or on any
such interest coupon, shall have ceased to be such officer before the
bond,
debenture or other corporate security so signed or attested shall have
been
delivered, such bond, debenture or other corporate security nevertheless
may be
adopted by the corporation and issued and delivered as though the person
who
signed the same or whose facsimile signature shall have been used thereon
had
not ceased to be such officer of the corporation.
ARTICLE
IX
DIVIDENDS
Section
40. Declaration of
Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the Articles of Incorporation,
if any,
may be declared by the Board of Directors pursuant to law at any regular
or
special meeting. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Articles
of
Incorporation.
Section
41. Dividend
Reserve. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for dividends
such sum
or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet
contingencies,
or for equalizing dividends, or for repairing or maintaining any property
of the
corporation, or for such other purpose as the Board of Directors shall
think
conducive to the interests of the corporation, and the Board of Directors
may
modify or abolish any such reserve in the manner in which it was
created.
ARTICLE
X
FISCAL
YEAR
Section
42. Fiscal
Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
ARTICLE
XI
INDEMNIFICATION
Section
43. Indemnification
of Directors, Executive Officers, Other Officers, Employees and Other
Agents.
(a)
Directors Officers. The corporation shall indemnify its directors and
officers
to the fullest extent not prohibited by the Nevada General Corporation
Law;
provided, however, that the corporation may modify the extent of such
indemnification by individual contracts with its directors and officers;
and,
provided, further, that the corporation shall not be required to indemnify
any
director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly
required
to be made by law, (ii) the proceeding was authorized by the Board of
Directors
of the corporation, (iii) such indemnification is provided by the corporation,
in its sole discretion, pursuant to the powers vested in the corporation
under
the Nevada General Corporation Law or (iv) such indemnification is required
to
be made under subsection (d).
(b)
Employees and Other Agents. The corporation shall have power to indemnify
its
employees and other agents as set forth in the Nevada General Corporation
Law.
(c)
Expense. The corporation shall advance to any person who was or is a
party or is
threatened to be made a party to any threatened, pending or completed
action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by
reason of the fact that he is or was a director or officer, of the corporation,
or is or was serving at the request of the corporation as a director
or
executive officer of another corporation, partnership, joint venture,
trust or
other enterprise, prior to the final disposition of the proceeding, promptly
following request therefor, all expenses incurred by any director or
officer in
connection with such proceeding upon receipt of an undertaking by or
on behalf
of such person to repay said mounts if it should be determined ultimately
that
such person is not entitled to be indemnified under this Bylaw or
otherwise.
Notwithstanding
the foregoing, unless
otherwise determined pursuant to paragraph (e) of this Bylaw, no advance
shall
be made by the corporation to an officer of the corporation (except by
reason of
the fact that such officer is or was a director of the corporation in
which
event this paragraph shall not apply) in any action, suit or proceeding,
whether
civil, criminal, administrative or investigative, if a determination
is
reasonably and promptly made (i) by the Board of Directors by a majority
vote of
a quorum consisting of directors who were not parties to the proceeding,
or (ii)
if such quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a
written
opinion, that the facts known to the decision-making party at the time
such
determination is made demonstrate clearly and convincingly that such
person
acted in bad faith or in a manner that such person did not believe to
be in or
not opposed to the best interests of the corporation.
(d) Enforcement. Without
the necessity of entering into an express contract, all rights to
indemnification and advances to directors and officers under this Bylaw
shall be
deemed to be contractual rights and be effective to the same extent and
as if
provided for in a contract between the corporation and the director or
officer. Any right to indemnification or advances granted by this
Bylaw to a director or officer shall be enforceable by or on behalf of
the
person holding such right in any court of competent jurisdiction if (i)
the
claim for indemnification or advances is denied, in whole or in part,
or (ii) no
disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in
whole or in part, shall be entitled to be paid also the expense of prosecuting
his claim. In connection with any claim for indemnification, the
corporation shall be entitled to raise as a defense to any such action
that the
claimant has not met the standard of conduct that make it permissible
under the
Nevada General Corporation Law for the corporation to indemnify the claimant
for
the amount claimed. In connection with any claim by an officer of the
corporation (except in any action, suit or proceeding, whether civil,
criminal,
administrative or investigative, by reason of the fact that such officer
is or
was a director of the corporation) for advances, the corporation shall
be
entitled to raise a defense as to any such action clear and convincing
evidence
that such person acted in bad faith or in a manner that such person did
not
believe to be in or not opposed in the best interests of the corporation,
or
with respect to any criminal action or proceeding that such person acted
without
reasonable cause to believe that his conduct was lawful. Neither the
failure of the corporation (including its Board of Directors, independent
legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper
in
the circumstances because he has met the applicable standard of conduct
set
forth in the Nevada General Corporation Law, nor an actual determination
by the
corporation (including its Board of Directors, independent legal counsel
or its
stockholders) that the claimant has not met such applicable standard
of conduct,
shall be a defense to the action or create a presumption that claimant
has not
met the applicable standard of conduct. In any suit brought by a
director or officer to enforce a right to indemnification or to an advancement
of expenses hereunder, the burden of proving that the director or officer
is not
entitled to be indemnified, or to such advancement of expenses, under
this
Article XI or otherwise shall be on the corporation.
(e) Non-Exclusivity
of
Rights. The rights conferred on any person by this Bylaw shall not be
exclusive of any other right which such person may have or hereafter
acquire
under any statute, provision of the Articles of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested
directors
or otherwise, both as to action in his official capacity and as to action
in
another capacity while holding office. The corporation is
specifically authorized to enter into individual contracts with any or
all of
its directors, officers, employees or agents respecting indemnification
and
advances, to the fullest extent not prohibited by the Nevada General
Corporation
Law.
(f) Survival
of
Rights. The rights conferred on any person by this Bylaw shall
continue as to a person who has ceased to be a director, officer, employee
or
other agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) Insurance. To
the fullest extent permitted by the Nevada General Corporation Law, the
corporation, upon approval by the Board of Directors, may purchase insurance
on
behalf of any person required or permitted to be indemnified pursuant
to this
Bylaw.
(h) Amendments. Any
repeal or modification of this Bylaw shall only be prospective and shall
not
affect the rights under this Bylaw in effect at the time of the alleged
occurrence of any action or omission to act that is the cause of any
proceeding
against any agent of the corporation.
(i) Saving
Clause. If this Bylaw or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the corporation
shall
nevertheless indemnify each director and officer to the full extent not
prohibited by any applicable portion of this Bylaw that shall not have
been
invalidated, or by any other applicable law.
(j) Certain
Definitions. For the purposes of this Bylaw, the following
definitions shall apply:
(i)
The term "proceeding" shall be broadly construed and shall include, without
limitation, the investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of testimony in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative.
(ii)
The term "expenses" shall be broadly construed and shall include, without
limitation, court costs, attorneys' fees, witness fees, fines, amounts
paid in
settlement or judgment and any other costs and expenses of any nature
or kind
incurred in connection with any proceeding.
(iii)
The term the "corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of
a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify
its
directors, officers, and employees or agents, so that any person who
is or was a
director, officer, employee or agent of such constituent corporation,
or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent or another corporation, partnership, joint
venture,
trust or other enterprise, shall stand in the same position under the
provisions
of this Bylaw with respect to the resulting or surviving corporation
as he would
have with respect to such constituent corporation if its separate existence
had
continued.
(iv)
References to a "director," "executive officer," "officer," "employee,"
or
"agent" of the corporation shall include, without limitation, situations
where
such person is serving at
the
request of the corporation as, respectively, a director, executive officer,
officer, employee, trustee or agent of another corporation, partnership,
joint
venture, trust or other enterprise.
(v)
References to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person
with
respect to an employee benefit plan; and references to "serving at the
request
of the corporation" shall include any service as a director, officer,
employee
or agent of the corporation which imposes duties on, or involves services
by,
such director, officer, employee, or agent with respect to an employee
benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have
acted in a
manner "not opposed to the best interests of the corporation" as referred
to in
this Bylaw.
ARTICLE
XII
NOTICES
Section
44. Notices.
(a)
Notice to Stockholders. Whenever, under any provisions of these Bylaws,
notice
is required to be given to any stockholder, it shall be given in writing,
timely
and duly deposited in the United States mail, postage prepaid, and addressed
to
his last known post office address as shown by the stock record of the
corporation or its transfer agent.
(b)
Notice to directors. Any notice required to be given to any director
may be
given by the method stated in subsection (a), or by facsimile, telex
or
telegram, except that such notice other than one which is delivered personally
shall be sent to such address as such director shall have filed in writing
with
the Secretary, or, in the absence of such filing, to the last known post
office
address of such director.
(c)
Affidavit of Mailing. An affidavit of mailing, executed by a duly authorized
and
competent employee of the corporation or its transfer agent appointed
with
respect to the class of stock affected, specifying the name and address
or the
names and addresses of the stockholder or stockholders, or director or
directors, to whom any such notice or notices was or were given, and
the time
and method of giving the same, shall in the absence of fraud, be prima
facie
evidence of the facts therein contained.
(d)
Time Notices Deemed Given. All notices given by mail, as above provided,
shall
be deemed to have been given as at the time of mailing, and all notices
given by
facsimile, telex or telegram shall be deemed to have been given as of
the
sending time recorded at time of transmission.
(e)
Methods of Notice. It shall not be necessary that the same method of
giving
notice be employed in respect of all directors, but one permissible method
may
be employed in respect of any one or more, and any other permissible
method or
methods may be employed in respect of any other or others.
(f)
Failure to Receive Notice. The period or limitation of time within which
any
stockholder may exercise any option or right, or enjoy any privilege
or benefit,
or be required to act, or within which any director may exercise any
power or
right, or enjoy any privilege, pursuant to any notice sent him ill the
manner
above provided, shall not be affected or extended in any manner by the
failure
of such stockholder or such director to receive such notice.
(g)
Notice to Person with Whom Communication Is Unlawful. Whenever notice
is
required to be given, under any provision of law or of the Articles of
Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall
not be
require and there shall be no duty to apply to any governmental authority
or
agency for a license or permit to give such notice to such person. Any
action or
meeting which shall be taken or held without notice to any such person
with whom
communication is unlawful shall have the same force and effect as if
such notice
had been duly given. In the event that the action taken by the corporation
is
such as to require the filing of a certificate under any provision of
the Nevada
General Corporation Law, the certificate shall state, if such is the
fact and if
notice is required, that notice was given to all persons entitled to
receive
notice except such persons with whom communication is unlawful.
(h)
Notice to Person with Undeliverable Address. Whenever notice is required
to be
given, under any provision of law or the Articles of Incorporation or
Bylaws of
the corporation, to any stockholder to whom (i) notice of two consecutive
annual
meetings, and all notices of meetings or of the taking of action by written
consent without a meeting to such person during the period between such
two
consecutive annual meetings, or (ii) all, and at least two, payments
(if sent by
first class mail) of dividends or interest on securities during a twelve-month
period, have been mailed addressed to such person at his address as shown
on the
records of the corporation and have been returned undeliverable, the
giving of
such notice to such person shall not be required. Any action or meeting
which
shall be taken or held without notice to such person shall have the same
force
and effect as if such notice had been duly given. If any such person
shall
deliver to the corporation a written notice setting forth his then current
address, the requirement that notice be given to such person shall be
reinstated. In the event that the action taken by the corporation is
such as to
require the filing of a certificate under any provision of the Nevada
General
Corporation Law, the certificate need not state that notice was not given
to
persons to whom notice was not required to be given pursuant to this
paragraph.
ARTICLE
XII
AMENDMENTS
Section
45. Amendments.
The
Board of Directors shall have the
sole power to adopt, amend, or repeal Bylaws as set forth in the Articles
of
Incorporation.
ARTICLE
XIV
LOANS
TO OFFICERS
Section
46. Loans to
Officers. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiaries, including any officer or employee
who is a
Director of the corporation or its subsidiaries, whenever, in the judgment
of
the Board of Directors, such loan, guarantee or assistance may reasonably
be
expected to benefit the corporation. The loan, guarantee or other
assistance may be with or without interest and may be unsecured, or secured
in
such manner as the Board of Directors shall approve, including, without
limitation, a pledge of shares of stock of the corporation. Nothing
in these Bylaws shall be deemed to deny, limit or restrict the powers
of
guaranty or warranty of the corporation at common law or under any
statute.
ARTICLE
XV
BOARD
OF ADVISORS
Section
47.
Board of
Advisors. The Board of Directors, in its discretion, may
establish a Board of Advisors consisting of individuals who may or may
not be
stockholders or directors of the corporation. The purpose of the
Board of Advisors would be to advise the officers and directors of the
corporation with respect to such matters as such officers and directors
shall
choose, and any other such matters which the members of such Board of
Advisors
deem appropriate in furtherance of the best interest of the
corporation. The Board of Advisors shall meet on such basis as the
members thereof may determine. The Board of Directors may eliminate
the Board of Advisors at any time. No member of the Board of
Advisors, nor the Board of Advisors itself, shall have any authority
within the
corporation or any decision making power and shall be merely advisory
in
nature. Unless the Board of Directors determines another method of
appointment, the President shall recommend possible members to the Board
of
Directors, who shall approve or reject such appointments.
Declared
and certified as the Bylaws of WSG Acquisition, Inc. on January 10,
2008.
Signature
of Officer:
|
/s/Xxxx
Xxxxx
Xxxxxx
|
Name
of Officer:
|
Xxxx
Xxxxx Xxxxxx
|
Position
of Officer:
|
President,
Secretary & Treasurer
|
Exhibit
C
Officers
and Directors of Parent
— Pre-Effective
Time and Post-Effective
Time—
Pre-Effective
Time: Xxxx Xxxxx Xxxxxx,
President, Secretary/ Treasurer, CEO, CFO and sole Director
Following
Notice
Filings:
The
following persons shall be appointed
as Officers and Directors of Parent:
Name
|
Office(s)
|
Xxxxx
Xxxxxxx
|
President,
CEO, and Director
|
Xxxx
Xxxxx
|
Chairman
of the Board, Director
|
Xxxxx
Xxxxx
|
Secretary,
Treasurer, and Director
|
Exhibit
D
Certificate
of Incorporation of
Parent
See
attached.
XXXX
XXXXXX
Secretary
of State
000
Xxxxx Xxxxxx Xxxxxx
Xxxxxx
Xxxx, Xxxxxx 00000-0000
(000)
000 0000
Website:
xxxxxxxxxxxxxxxx.xxx
Articles
of Incorporation
(PURSUANT
TO NRS 78)
ABOVE
SPACE IS FOR OFFICE USE ONLY
|
||||||||||||||
1.
|
Name
of Corporation:
|
Innovative Consumer Products, Inc. | ||||||||||||
2.
|
Resident
Agent
Name
and Street Address:
(must
be a Nevada address where process may be
served)
|
Xxxx Xxxxx Xxxxxx | ||||||||||||
Name
|
||||||||||||||
00000 Xxxxxxx #0000 | Xxx Xxxxx | XX | 00000 | |||||||||||
Xxxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Code
|
|||||||||||
Optional
Mailing Address
|
City
|
ST
|
Zip
Code
|
|||||||||||
3.
|
Shares:
(number
of shares corporation authorized to
issue)
|
Number
of shares with
par value:100,000,000
|
Par
value: $
|
0.001 |
Number
of shares without par value:
|
|||||||||
4.
|
Names
&
Addresses
of
Board of
Directors/Trustees:
(attach
additional page if there is more than 3
directors/trustees)
|
1.Xxxx
Xxxxx
Xxxxxx
|
||||||||||||
Name |
|
|||||||||||||
10000 Xxxxxxx #0000 | Xxx Xxxxx | XX | 00000 | |||||||||||
Stxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Xode
|
|||||||||||
2.
|
||||||||||||||
Name |
|
|||||||||||||
Stxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Xode
|
|||||||||||
3.
|
||||||||||||||
Name |
|
|||||||||||||
Stxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Xode
|
|||||||||||
5.
|
Purpose:(optional-see
instructions)
|
The
purpose of this Corporation shall be: All
lawful
purposes
|
||||||||||||
6.
|
Name,
Address and Signature of
Incorporator.
(attach
additional page if there is more than 1
incorporator)
|
Xxxx Xxxxx Xxxxxx | /s/ Xxxx Xxxxx Xxxxxx | |||||||||||
Name
|
Signature
|
|||||||||||||
Stxxxx
Xxxxxxx
|
Xxxx
|
XX
|
Xxx
Xode
|
|||||||||||
7.
|
Certificate
of
Acceptance
of
Appointment
of
Resident
Agent:
|
I
hereby accept appointment as Resident Agent for the above named
corporation.
|
||||||||||||
/s/ Xxxx Xxxxx Xxxxxx | 6/30/06 | |||||||||||||
Authorized
Signature of R.A. or On Behalf of R.A. Company
|
Date
|
This
form must be accompanied by appropriate fees.
Nevada
Secretary of State Form 78 Articles 2007
Revised
on: 01/01/07
ARTICLES
OF INCORPORATION
OF
ARTICLE
I
NAME
The
name of the corporation shall be Innovative Consumer Products, Inc.
(hereinafter, the “Corporation”).
ARTICLE
II
REGISTERED
OFFICE
The
initial office of the Corporation shall be 10175 Xxxxxxx 1060, Lax Xxxxx,
Xxxxxx
00000, . The initial registered agent of the Corporation shall be
Xxxx Xxxxx Xxxxxx at 10175 Xxxxxxx 1060, Lax Xxxxx, Xxxxxx 00000,
. The Corporation may, from time to time, in the manner provided by
law, change the resident agent and the registered office within the State
of
Nevada. The Corporation may also maintain an office or offices for the
conduct
of its business, either within or without the State of
Nevada.
ARTICLE
III
CAPITAL
STOCK
Section 1. Authorized
Shares. The aggregate number of shares which the
Corporation shall have authority to issue is one hundred million (100,000,000)
shares, consisting of two classes to be designated, respectively, "Common
Stock"
and "Preferred Stock," with all of such shares having a par value of $.001
per
share. The total number of shares of Common Stock that the Corporation
shall
have authority to issue is ninety million (90,000,000) shares. The total
number
of shares of Preferred Stock that the Corporation shall have authority
to issue
is ten million (10,000,000) shares. The Preferred Stock may be issued in
one or
more series, each series to be appropriately designated by a distinguishing
letter or title, prior to the issuance of any shares thereof. The voting
powers,
designations, preferences, limitations, restrictions, and relative,
participating, optional and other rights, and the qualifications, limitations,
or restrictions thereof, of the Preferred Stock shall hereinafter be prescribed
by resolution of the board of directors pursuant to Section 3 of this
Article III.
Section 2. Common
Stock.
(a) Dividend
Rate. Subject to the rights of holders of any
Preferred Stock having preference as to dividends and except as otherwise
provided by these Articles of Incorporation, as amended from time to time
(hereinafter, the "Articles") or the Nevada
Revised Statues (hereinafter, the “NRS”), the
holders of Common Stock shall be entitled to
receive dividends when, as and if declared by the board of directors out
of
assets legally available therefor.
(b) Voting
Rights. Except as otherwise provided
by the NRS, the holders
of the issued and outstanding shares of Common Stock shall be entitled
to one
vote for each share of Common Stock. No holder of shares of Common Stock
shall
have the right to cumulate votes.
(c) Liquidation
Rights. In the event of liquidation, dissolution,
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, subject to the prior rights of holders of Preferred Stock
to share
ratably in the Corporation's assets, the Common Stock and any shares
of
Preferred Stock which are not entitled to any preference in liquidation
shall
share equally and ratably in the Corporation's assets available for distribution
after giving effect to any liquidation preference of any shares of Preferred
Stock. A merger, conversion, exchange or consolidation of the Corporation
with
or into any other person or sale or transfer of all or any part of the
assets of
the Corporation (which shall not in fact result in the liquidation of the
Corporation and the distribution of assets to stockholders) shall not be
deemed
to be a voluntary or involuntary liquidation, dissolution or winding up
of the
affairs of the Corporation.
(d) No
Conversion, Redemption, or Preemptive Rights. The
holders of Common Stock shall not have any conversion, redemption, or preemptive
rights.
(e) Consideration
for Shares. The Common Stock
authorized by this Article shall be issued for such consideration as shall
be
fixed, from time to time, by the board of directors.
Section 3. Preferred
Stock.
(a) Designation. The
board of directors is hereby vested with the authority from time to time
to
provide by resolution for the issuance of shares of Preferred Stock in
one or
more series not exceeding the aggregate number of shares of Preferred Stock
authorized by these Articles, and to prescribe with respect to each such
series
the voting powers, if any, designations, preferences, and relative,
participating, optional, or other special rights, and the qualifications,
limitations, or restrictions relating thereto, including, without limiting
the
generality of the foregoing: the voting rights relating to the shares of
Preferred Stock of any series (which voting rights, if any, may be full
or
limited, may vary over time, and may be applicable generally or only upon
any
stated fact or event); the rate of dividends (which may be cumulative or
noncumulative), the condition or time for payment of dividends and the
preference or relation of such dividends to dividends payable on any other
class
or series of capital stock; the rights of holders of Preferred Stock of
any
series in the event of liquidation, dissolution, or winding up of the affairs
of
the Corporation; the rights, if any, of holders of Preferred Stock of any
series
to convert or exchange such shares of Preferred Stock of such series for
shares
of any other class or series of capital stock or for any other securities,
property, or assets of the Corporation or any subsidiary (including the
determination of the price or prices or the rate or rates applicable to
such
rights to convert or exchange and the adjustment thereof, the time or times
during which the right to convert or exchange shall be applicable, and
the time
or times during which a particular price or rate shall be applicable);
whether
the shares of any series of Preferred Stock shall be subject to redemption
by
the Corporation and if subject to redemption, the times, prices, rates,
adjustments and other terms and conditions of such redemption. The powers,
designations, preferences, limitations, restrictions and relative rights
may be
made dependent upon any fact or event which may be ascertained outside
the
Articles or the resolution if the manner in which the fact or event may
operate
on such series is stated in the Articles or resolution. As used in this
section
"fact or event" includes, without limitation, the existence of a fact or
occurrence of an event, including, without limitation, a determination
or action
by a person, government, governmental agency or political subdivision of
a
government. The board of directors is further authorized to increase or
decrease
(but not below the number of such shares of such series then outstanding)
the
number of shares of any series subsequent to the issuance of shares of
that
series. Unless the board of directors provides to the contrary in the resolution
which fixes the characteristics of a series of Preferred Stock, neither
the
consent by series, or otherwise, of the holders of any outstanding Preferred
Stock nor the consent of the holders of any outstanding Common Stock shall
be
required for the issuance of any new series of Preferred Stock regardless
of
whether the rights and preferences of the new series of Preferred Stock
are
senior or superior, in any way, to the outstanding series of Preferred
Stock or
the Common Stock.
(b) Certificate. Before
the Corporation shall issue any shares of Preferred Stock of any series,
a
certificate of designation setting forth a copy of the resolution or resolutions
of the board of directors, and establishing the voting powers, designations,
preferences, the relative,
participating,
optional, or other rights, if any,
and the qualifications, limitations, and restrictions, if any, relating
to the
shares of Preferred Stock of such series, and the number of shares of Preferred
Stock of such series authorized by the board of directors to be issued
shall be
made and signed by an officer of the corporation and filed in the manner
prescribed by the NRS.
Section 4. Non-Assessment
of Stock. The capital stock of the Corporation,
after the amount of the subscription price has been fully paid, shall not
be
assessable for any purpose, and no stock issued as fully paid shall ever
be
assessable or assessed, and the Articles shall not be amended in this
particular. No stockholder of the Corporation is individually liable for
the
debts or liabilities of the Corporation.
ARTICLE
IV
DIRECTORS
AND OFFICERS
Section 1. Number
of Directors. The members of the governing board
of the Corporation are styled as directors. The board of directors of the
Corporation shall be elected in such manner as shall be provided in the
bylaws
of the Corporation. The board of directors shall consist of at least one
(1) individual and not more than thirteen (13) individuals. The number
of directors may be changed from time to time in such manner as shall be
provided in the bylaws of the
Corporation.
Section 2. Initial
Directors. The name and post office
box or street address of
the director(s) constituting the initial board of directors
is:
Name | Address |
Xxxx Xxxxx Xxxxxx | 10175 Xxxxxxx 1060, Lax Xxxxx, Xxxxxx 00000 |
Section 3. Limitation
of Liability. The liability of directors and
officers of the Corporation shall be eliminated or limited to the fullest
extent
permitted by the NRS. If the NRS is amended to further eliminate or limit
or
authorize corporate action to further eliminate or limit the liability
of
directors or officers, the liability of directors and officers of the
Corporation shall be eliminated or limited to the fullest extent permitted
by
the NRS, as so amended from time to time.
Section 4. Payment
of Expenses. In addition to any other rights of
indemnification permitted by the laws of the State of Nevada or as may
be
provided for by the Corporation in its bylaws or by agreement, the expenses
of
officers and directors incurred in defending any threatened, pending, or
completed action, suit or proceeding (including without limitation, an
action,
suit or proceeding by or in the right of the Corporation), whether civil,
criminal, administrative or investigative, involving alleged acts or omissions
of such officer or director in his or her capacity as an officer or director
of
the Corporation or member, manager, or managing member of a predecessor
limited
liability company or affiliate of such limited liability company or while
serving in any capacity at the request of the Corporation as a director,
officer, employee, agent, member, manager, managing member, partner, or
fiduciary of, or in any other capacity for, another corporation or any
partnership, joint venture, trust, or other enterprise, shall be paid by
the
Corporation or through insurance purchased and maintained by the Corporation
or
through other financial arrangements made by the Corporation, as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the officer
or
director to repay the amount if it is ultimately determined by a court
of
competent jurisdiction that he or she is not entitled to be indemnified
by the
Corporation. To the extent that an officer or director is successful on
the
merits in defense of any such action, suit or proceeding, or in the defense
of
any claim, issue or matter therein, the Corporation shall indemnify him
or her
against expenses, including attorneys' fees, actually and reasonably incurred
by
him or her in connection with the defense. Notwithstanding anything to
the
contrary contained herein or in the bylaws, no director or officer may
be
indemnified for expenses incurred in defending any threatened, pending,
or
completed action, suit or proceeding (including without limitation, an
action,
suit or proceeding by or in the right of the Corporation), whether civil,
criminal, administrative or investigative, that such director or officer
incurred in his or her capacity as a stockholder, including, but not
limited
to, in connection with such person being deemed an Unsuitable Person (as
defined
in Article VII hereof).
Section 5. Repeal
And Conflicts. Any repeal or modification of
Sections 3 or 4 above approved by the stockholders of the Corporation shall
be
prospective only, and shall not adversely affect any limitation on the
liability
of a director or officer of the Corporation existing as of the time of
such
repeal or modification. In the event of any conflict between Sections 3
or 4
above and any other Article of the Articles, the terms and provisions of
Sections 3 or 4 above shall control.
COMBINATIONS
WITH INTERESTED STOCKHOLDERS
At
such time, if any, as the Corporation becomes a "resident domestic corporation",
as that term is defined in NRS 78.427, the Corporation shall not be subject
to,
or governed by, any of the provisions in NRS 78.411 to 78.444, inclusive,
as may
be amended from time to time, or any successor
statute.
ARTICLE
VI
BYLAWS
The
board of directors is expressly granted the
exclusive power to make, amend, alter, or repeal the bylaws of the Corporation
pursuant to NRS 78.120.
IN
WITNESS WHEREOF, the Corporation has caused these second amended and restated
articles of incorporation to be executed in its name by its Incorporator
on June
30, 2006.
/s/Xxxx
Xxxxx Xxxxxx
Xxxx
Xxxxx Xxxxxx
Exhibit
E
Bylaws
of Parent
See
attached.
BY-LAWS
OF
(A
NEVADA CORPORATION)
ARTICLE
I
OFFICES
Section
1. Registered
Office. The registered office of the corporation in the State of Nevada
shall be at such place as the board shall resolve.
Section
2. Other
Offices. The corporation shall also have and maintain an
office or principal place of business at such place as may be fixed by
the Board
of Directors, and may also have offices at such other places, both within
and
without the State of Nevada as the Board of Directors may from time to
time
determine or the business of the corporation may require.
ARTICLE
II
CORPORATE
SEAL
Section
3. Corporate
Seal. The corporate seal shall consist of a die bearing the
name of the corporation and the inscription, "Corporate Seal-Nevada." Said
seal
may be used by causing it or a facsimile thereof to be impressed or affixed
or
reproduced or otherwise.
ARTICLE
III
STOCKHOLDERS'
MEETINGS
Section
4. Place of
Meetings. Meetings of the stockholders of the corporation
shall be held at such place, either within or without the State of Nevada,
as
may be designated from time to time by the Board of Directors, or, if not
so
designated, then at the office of the corporation required to be maintained
pursuant to Section 2 hereof.
Section
5. Annual Meeting.
(a)
The annual meeting of the stockholders of the corporation, for the purpose
of
election of directors and for such other business as may lawfully come
before
it, shall be held on such date and at such time as may be designated from
time
to time by the Board of Directors.
(b)
At an annual meeting of the stockholders, only such business shall be conducted
as
shall
have been properly brought before the meeting. To be properly brought before
an
annual meeting, business must be: (A) specified in the notice of meeting
(or any
supplement thereto) given by or at the direction of the Board of Directors,
(B)
otherwise properly brought before the meeting by or at the direction of
the
Board of Directors, or (C) otherwise properly brought before the meeting
by a
stockholder. For business to be properly brought before an annual meeting
by a
stockholder, the stockholder must have given timely notice thereof in writing
to
the Secretary of the corporation. To be timely, a stockholder's notice
must be
delivered to or mailed and received at the principal executive offices
of the
corporation not later than the close of business on the sixtieth (60th)
day nor
earlier than the close of business on the ninetieth (90th) day prior to
the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that no annual meeting was held in the previous year
or the
date of the annual meeting has been changed by more than thirty (30) days
from
the date contemplated at the time of the previous year's proxy statement,
notice
by the stockholder to be timely must be so received not earlier than the
close
of business on the ninetieth (90th) day prior to such annual meeting and
not
later than the close of business on the later of the sixtieth (60th) day
prior
to such annual meeting or, in the event public announcement of the date
of such
annual meeting is first made by the corporation fewer than seventy (70)
days
prior to the date of such annual meeting, the close of business on the
tenth
(10th) day following the day on which public announcement of the date of
such
meeting is first made by the corporation. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to
bring
before the annual meeting: (i) a brief description of the business desired
to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business, (iii)
the class
and number of shares of the corporation which are beneficially owned by
the
stockholder, (iv) any material interest of the stockholder in such business
and
(v) any other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended
(the "1934 Act"), in his capacity as a proponent to a stockholder proposal.
Notwithstanding the foregoing, in order to include information with respect
to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice as required by
the
regulations promulgated under the 1934 Act. Notwithstanding anything in
these
Bylaws to the contrary, no business shall be conducted at any annual meeting
except in accordance with the procedures set forth in this paragraph (b).
The
chairman of the annual meeting shall, if the facts warrant, determine and
declare at the meeting that business was not properly brought before the
meeting
and in accordance with the provisions of this paragraph (b), and, if he
should
so determine, he shall so declare at the meeting that any such business
not
properly brought before the meeting shall not be transacted.
(c)
Only persons who are confirmed in accordance with the procedures set forth
in
this paragraph (c) shall be eligible for election as directors. Nominations
of
persons for election to the Board of Directors of the corporation may be
made at
a meeting of stockholders by or at the direction of the Board of Directors
or by
any stockholder of the corporation entitled to vote in the election of
directors
at the meeting who complies with the notice procedures set forth in this
paragraph (c). Such nominations, other than those made by or at the direction
of
the Board of Directors, shall be made pursuant to timely notice in writing
to
the Secretary of the corporation in accordance with the provisions of paragraph
(b) of this Section 5. Such stock¬holder's notice shall
set
forth
(i) as to each person, if any, whom the stockholder proposes to nominate
for
election or re-election as a director: (A) the name, age, business address
and
residence address of such person, (B) the principal occupation or employment
of
such person, (c) the class and number of shares of the corporation which
are
beneficially owned by such person, (D) a description of all arrangements
or
understandings between the stockholder and each nominee and any other person
or
persons (naming such person or persons) pursuant to which the nominations
are to
be made by the stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of proxies for
election
of directors, or is otherwise required, in each case pursuant to Regulation
14A
under the 1934 Act (including without limitation such person's written
consent
to being named in the proxy statement, if any, as a nominee and to serving
as a
director if elected); and (ii) as to such stockholder giving notice, the
information required to be provided pursuant to paragraph (b) of this Section
5. At the request of the Board of Directors, any person nominated by
a stockholder for election as a director shall furnish to the Secretary
of the
corporation that information required to be set forth in the stockholder's
notice of nomination which pertains to the nominee. No person shall
be eligible for election as a director of the corporation unless nominated
in
accordance with the procedures set forth in this paragraph (c). The
chairman of the meeting shall, if the facts warrant, determine and declare
at
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so
declare
at the meeting, and the defective nomination shall be disregarded.
(d)
For purposes of this Section 5, "public announcement" shall mean disclosure
in a
press release reported by the Dow Xxxxx News Service, Associated Press
or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section
13,
14 or 15(d) of the Exchange Act.
Section
6. Special Meetings.
(a)
Special meetings
of
the stockholders of the corporation may be called, for any purpose or
purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief
Executive Officer, or (iii) the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether
or
not there exist any vacancies in previously authorized directorships at
the time
any such resolution is presented to the Board of Directors for adoption),
and
shall be held at such place, on such date, and at such time, as the Board
of
Directors shall determine.
(b) If a
special meeting is called by any person or persons other than the Board
of
Directors, the request shall be in writing, specifying the general nature
of the
business proposed to be transacted, and shall be delivered personally or
sent by
registered mail or by tele-graphic or other facsimile transmission to the
Chairman of the Board of Directors, the Chief Executive Officer, or the
Secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The Board of Directors
shall
determine the time and place of such special meeting, which shall be held
not
less than thirty-five (35) nor more than one hundred twenty (120) days
after the
date of the receipt of the request. Upon determination of the time and
place of
the meeting, the officer receiving the request shall cause notice to be
given to
the stockholders entitled to vote, in accordance with the provisions of
Section
7 of these Bylaws. If the
notice
is
not given within sixty (60) days after the receipt of the request, the
person or
persons requesting the meeting may set the time and place of the meeting
and
give the notice. Nothing contained in this paragraph (b) shall be construed
as
limiting, fixing, or affecting the time when a meeting of stockholders
called by
action of the Board of Directors may be held.
Section
7. Notice of
Meetings. Except as otherwise provided by law or the Articles
of Incorporation, written notice of each meeting of stockholders shall
be given
not less than ten (10) nor more than sixty (60) days before the date of
the
meeting to each stockholder entitled to vote at such meeting, such notice
to
specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, signed by the person entitled to
notice
thereof, either before or after such meeting, and will be waived by any
stockholder by his attendance thereat in person or by proxy, except when
the
stockholder attends a meeting for the express purpose of objecting, at
the
beginning of the meeting, to the transaction of any business because the
meeting
is not lawfully called or convened. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such meeting in
all
respects as if due notice thereof had been given.
Section
8. Quorum. At all meetings of stockholders, except
where otherwise provided by statute or by the Articles of Incorporation,
or by
these Bylaws, the presence, in person or by proxy duly authorized, of the
holder
or holders of not less than fifty percent (50%) of the outstanding shares
of
stock entitled to vote shall constitute a quorum for the transaction of
business. In the absence of a quorum, any meeting of stockholders may
be adjourned, from time to time, either by the chairman of the meeting
or by
vote of the holders of a majority of the shares represented thereat, but
no
other business shall be transacted at such meeting. The stockholders
present at a duly called or convened meeting, at which a quorum is present,
may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum. Except as
otherwise provided by law, the Articles of Incorporation or these Bylaws,
all
action taken by the holders of a majority of the votes cast, excluding
abstentions, at any meeting at which a quorum is present shall be valid
and
binding upon the corporation; provided, however, that directors shall be
elected
by a plurality of the votes of the shares present in person or represented
by
proxy at the meeting and entitled to vote on the election of
directors. Where a separate vote by a class or classes or series is
required, except where otherwise provided by the statute or by the Articles
of
Incorporation or these Bylaws, a majority of the outstanding shares of
such
class or classes or series, present in person or represented by proxy,
shall
constitute a quorum entitled to take action with respect to that vote on
that
matter and, except where otherwise provided by the statute or by the Articles
of
Incorporation or these Bylaws, the affirmative vote of the majority (plurality,
in the case of the election of directors) of the votes cast, including
abstentions, by the holders of shares of such class or classes or series
shall
be the act of such class or classes or series.
Section
9. Adjournment and
Notice of Adjourned Meetings. Any meeting of stockholders,
whether annual or special, may be adjourned from time to time either by
the
chairman of the meeting or by the vote of a majority of the shares casting
votes, excluding abstentions. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the
time and
place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the corporation may transact any
business which might have been
transacted
at the original meeting. If the adjournment is for more than thirty
(30) days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to
each
stockholder of record entitled to vote at the meeting.
Section
10. Voting
Rights. For the purpose of determining those stockholders
entitled to vote at any meeting of the stockholders, except as otherwise
provided by law, only persons in whose names shares stand on the stock
records
of the corporation on the record date, as provided in Section 12 of these
Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote shall have the right to
do so either in person or by an agent or agents authorized by a proxy granted
in
accordance with Nevada law. An agent so appointed need not be a
stockholder. No proxy shall be voted after three (3) years from its date
of
creation unless the proxy provides for a longer period.
Section
11. Joint Owners
of Stock. If shares or other securities having voting power
stand of record in the names of two (2) or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by
the
entirety, or otherwise, or if two (2) or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given
written
notice to the contrary and is furnished with a copy of the instrument or
order
appointing them or creating the relationship wherein it is so provided,
their
acts with respect to voting shall have the following effect: (a) if only
one (1)
votes, his act binds all; (b) if more than one (1) votes, the act of the
majority so voting binds all; (c) if more than one (1) votes, but the vote
is
evenly split on any particular matter, each faction may vote the securities
in
question proportionally, or may apply to the Nevada Court of Chancery for
relief
as provided in the General Corporation Law of Nevada, Section
217(b). If the instrument filed with the Secretary shows that any
such tenancy is held in unequal interests, a majority or even-split for
the
purpose of subsection (c) shall be a majority or even-split in
interest.
Section
12. List of
Stockholders. The Secretary shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of
the
stockholders entitled to vote at said meeting, arranged in alphabetical
order,
showing the address of each stockholder and the number of shares registered
in
the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10)
days
prior to the meeting, either at a place within the city where the meeting
is to
be held, which place shall be specified in the notice of the meeting, or,
if not
specified, at the place where the meeting is to be held. The list
shall be produced and kept at the time and place of meeting during the
whole
time thereof and may be inspected by any stockholder who is
present.
Section
13. Action Without
Meeting. No action shall be taken by the stockholders except at an
annual or special meeting of stockholders called in accordance with these
Bylaws, or by the written consent of the stockholders setting forth the action
so taken and signed by the holders of outstanding stock having not less
than the
minimum number of votes that would be necessary to authorize or take such
action
at a meeting at which all shares entitled to vote upon were present and
voted.
Section
14. Organization.
(a)
At every meeting of stockholders, the Chairman of the Board of Directors,
or, if
a Chairman has not been appointed or is absent, the President, or, if the
President is absent, a chairman of the meeting chosen by a majority in
interest
of the stockholders entitled to vote, present in person or by proxy, shall
act
as chairman. The Secretary, or, in his absence, an Assistant Secretary
directed
to do so by the President, shall act as secretary of the meeting.
(b)
The Board of Directors of the corporation shall be entitled to make such
rules
or regulations for the conduct of meetings of stockholders as it shall
deem
necessary, appropriate or convenient. Subject to such rules and regulations
of
the Board of Directors, if any, the chairman of the meeting shall have
the right
and authority to prescribe such rules, regulations and procedures and to
do all
such acts as, in the judgment of such chairman, are necessary, appropriate
or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those
present,
limitations on participation in such meeting to stockholders of record
of the
corporation and their duly authorized and constituted proxies and such
other
persons as the chairman shall permit, restrictions on entry to the meeting
after
the time fixed for the commencement thereof, limitations on the time allotted
to
questions or comments by participants and regulation of the opening and
closing
of the polls for balloting on matters which are to be voted on by ballot.
Unless
and to the extent determined by the Board of Directors or the chairman
of the
meeting, meetings of stockholders shall not be required to be held in accordance
with rules of parliamentary procedure.
ARTICLE
IV
DIRECTORS
Section
15. Number and
Qualification. The authorized number of directors of the
corporation shall be not less than one (1) nor more than thirteen (13)
as fixed
from time to time by resolution of the Board of Directors; provided that
no
decrease in the number of directors shall shorten the term of any incumbent
directors. Directors need not be stockholders unless so required by
the Articles of Incorporation. If for any cause, the directors shall
not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders called
for
that purpose in the manner provided in these Bylaws.
Section
16. Powers. The powers of the corporation shall be
exercised, its business conducted and its property controlled by the Board
of
Directors, except as may be otherwise provided by statute or by the Articles
of
Incorporation.
Section
17. Election and
Term of Office of Directors. Members of the Board of Directors
shall hold office for the terms specified in the Articles of Incorporation,
as
it may be amended from time to time, and until their successors have been
elected as provided in the Articles of Incorporation.
Section
18. Vacancies. Unless otherwise provided in the
Articles of Incorporation, any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or
other
causes and any newly created directorships resulting from any increase
in the
number of directors, shall unless the Board of Directors determines by
resolution that any such vacancies or newly created directorships shall
be
filled by stockholder vote, be filled only by the affirmative vote of a
majority
of the directors then in office, even though less than a quorum of the
Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the director
for which the vacancy was created or occurred and until such director's
successor shall have been elected and qualified. A vacancy in the
Board of Directors shall be deemed to exist under this Bylaw in the case
of the
death, removal or resignation of any director.
Section
19. Resignation. Any director may resign at any
time by delivering his written resignation to the Secretary, such resignation
to
specify whether it will be effective at a particular time, upon receipt
by the
Secretary or at the pleasure of the Board of Directors. If no such
specification is made, it shall be deemed effective at the pleasure of
the Board
of Directors. When one or more directors shall resign from the Board
of Directors, effective at a future date, a majority of the directors then
in
office, including those who have so resigned, shall have power to fill
such
vacancy or vacancies, the vote thereon to take effect when such resignation
or
resignations shall become effective, and each director so chosen shall
hold
office for the unexpired portion of the term of the director whose place
shall
be vacated and until his successor shall have been duly elected and
qualified.
Section
20. Removal. Subject to the Articles of
Incorporation, any director may be removed by the affirmative vote of the
holders of a majority of the outstanding shares of the Corporation then
entitled
to vote, with or without cause.
Section
21. Meetings.
(a)
Annual Meetings. The annual meeting of the Board of Directors shall be
held
immediately after the annual meeting of stockholders and at the place where
such
meeting is held. No notice of an annual meeting of the Board of Directors
shall
be necessary and such meeting shall be held for the purpose of electing
officers
and transacting such other business as may lawfully come before it.
(b)
Regular Meetings. Except as hereinafter otherwise provided, regular meetings
of
the Board of Directors shall be held in the office of the corporation required
to be maintained pursuant to Section 2 hereof. Unless otherwise restricted
by
the Articles of Incorporation, regular meetings of the Board of Directors
may
also be held at any place within or without the state of Nevada which has
been
designated by resolution of the Board of Directors or the written consent
of all
directors.
(c)
Special Meetings. Unless otherwise restricted by the Articles of Incorporation,
special meetings of the Board of Directors may be held at any time and
place
within or without the State of Nevada whenever called by the Chairman of
the
Board, the President or any two of the directors.
(d)
Telephone Meetings. Any member of the Board of Directors, or of any committee
thereof, may participate in a meeting by means of conference telephone
or
similar communications equipment by means of which all persons participating
in
the meeting can hear each other, and participation in a meeting by such
means
shall constitute presence in person at such meeting.
(e)
Notice of Meetings. Notice of the time and place of all special meetings
of the
Board of Directors shall be orally or in writing, by telephone, facsimile,
telegraph or telex, during normal business hours, at least twenty-four
(24)
hours before the date and time of the meeting, or sent in writing to each
director by first class mail, charges prepaid, at least three (3) days
before
the date of the meeting. Notice of any meeting may be waived in writing
at any
time before or after the meeting and will be waived by any director by
attendance thereat, except when the director attends the meeting for the
express
purpose of objecting, at the beginning of the meeting, to the transaction
of any
business because the meeting is not lawfully called or convened.
(f)
Waiver of Notice. The transaction of all business at any meeting of the
Board of
Directors, or any committee thereof, however called or noticed, or wherever
held, shall be as valid as though had at a meeting duly held after regular
call
and notice, if a quorum be present and if, either before or after the meeting,
each of the directors not present shall sign a written waiver of notice.
All
such waivers shall be filed with the corporate records or made a part of
the
minutes of the meeting.
Section
22. Quorum and
Voting.
(a)
Unless the Articles of Incorporation requires a greater number and except
with
respect to indemnification questions arising under Section 43 hereof, for
which
a quorum shall be one-third of the exact number of directors fixed from
time to
time in accordance with the Articles of Incorporation, a quorum of the
Board of
Directors shall consist of a majority of the exact number of directors
fixed
from time to time by the Board of Directors in accordance with the Articles
of
Incorporation provided, however, at any meeting whether a quorum be present
or
otherwise, a majority of the directors present may adjourn from time to
time
until the time fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b)
At each meeting of the Board of Directors at which a quorum is present,
all
questions and business shall be determined by the affirmative vote of a
majority
of the directors present, unless a different vote be required by law, the
Articles of Incorporation or these Bylaws.
Section
23. Action Without
Meeting. Unless otherwise restricted by the Articles of
Incorporation or these Bylaws, any action required or permitted to be taken
at
any meeting of the Board of Directors or of any committee thereof may be
taken
without a meeting, if all members of the Board of Directors or committee,
as the
case may be, consent thereto in writing, and such writing or writings are
filed
with the minutes of proceedings of the Board of Directors or
committee.
Section
24. Fees and
Compensation. Directors shall be entitled to such compensation
for their services as may be approved by the Board of Directors, including,
if
so approved, by resolution of the Board of Directors, a fixed sum and expenses
of attendance, if any, for attendance at each regular or special meeting
of the
Board of Directors and at any meeting of a committee of the Board of
Directors. Nothing herein contained shall be construed to preclude
any director from serving the
corporation
in any other capacity as an officer, agent, employee, or otherwise and
receiving
compensation therefor.
Section
25. Committees.
(a)
Executive Committee. The Board of Directors may by resolution passed by
a
majority of the whole Board of Directors appoint an Executive Committee
to
consist of one (1) or more members of the Board of Directors. The Executive
Committee, to the extent permitted by law and provided in the resolution
of the
Board of Directors shall have and may exercise all the powers and authority
of
the Board of Directors in the management of the business and affairs of
the
corporation, including without limitation the power or authority to declare
a
dividend, to authorize the issuance of stock and to adopt a certificate
of
ownership and merger, and may authorize the seal of the corporation to
be
affixed to all papers which may require it; but no such committee shall
have the
power or authority in reference to amending the Articles of Incorporation
(except that a committee may, to the extent authorized in the resolution
or
resolutions providing for the issuance of shares of stock adopted by the
Board
of Directors fix the designations and any of the preferences or rights
of such
shares relating to dividends, redemption, dissolution, any distribution
of
assets of the corporation or the conversion into, or the exchange of such
shares
for, shares of any other class or classes or any other series of the same
or any
other class or classes of stock of the corporation or fix the number of
shares
of any series of stock or authorize the increase or decrease of the shares
of
any series), adopting an agreement of merger or consolidation, recommending
to
the stockholders the sale, lease or exchange of all or substantially all
of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the
bylaws of the corporation.
(b)
Other Committees. The Board of Directors may, by resolution passed by a
majority
of the whole Board of Directors, from time to time appoint such other committees
as may be permitted by law. Such other committees appointed by the Board
of
Directors shall consist of one (1) or more members of the Board of Directors
and
shall have such powers and perform such duties as may be prescribed by
the
resolution or resolutions creating such committees, but in no event shall
such
committee have the powers denied to the Executive Committee in these
Bylaws.
(c)
Term. Each member of a committee of the Board of Directors shall serve
a term on
the committee coexistent with such member's term on the Board of Directors.
The
Board of Directors, subject to the provisions of subsections (a) or (b)
of this
Bylaw may at any time increase or decrease the number of members of a committee
or terminate the existence of a committee. The membership of a committee
member
shall terminate on the date of his death or voluntary resignation from
the
committee or from the Board of Directors. The Board of Directors may at
any time
for any reason remove any individual committee member and the Board of
Directors
may fill any committee vacancy created by death, resignation, removal or
increase in the number of members of the committee. The Board of Directors
may
designate one or more directors as alternate members of any committee,
who may
replace any absent or disqualified member at any meeting of the committee,
and,
in addition, in the absence or disqualification of any member of a committee,
the member or members thereof present at any meeting and not disqualified
from
voting, whether or not he or they
constitute
a quorum, may unanimously appoint another member of the Board of Directors
to
act at the meeting in the place of any such absent or disqualified
member.
(d)
Meetings. Unless the Board of Directors shall otherwise provide, regular
meetings of the Executive Committee or any other committee appointed pursuant
to
this Section 25 shall be held at such times and places as are determined
by the
Board of Directors, or by any such committee, and when notice thereof has
been
given to each member of such committee, no further notice of such regular
meetings need be given thereafter. Special meetings of any such committee
may be
held at any place which has been determined from time to time by such committee,
and may be called by any director who is a member of such committee, upon
written notice to the members of such committee of the time and place of
such
special meeting given in the manner provided for the giving of written
notice to
members of the Board of Directors of the time and place of special meetings
of
the Board of Directors. Notice of any special meeting of any committee
may be
waived in writing at any time before or after the meeting and will be waived
by
any director by attendance thereat, except when the director attends such
special meeting for the express purpose of objecting, at the beginning
of the
meeting, to the transaction of any business because the meeting is not
lawfully
called or convened. A majority of the authorized number of members of any
such
committee shall constitute a quorum for the transaction of business, and
the act
of a majority of those present at any meeting at which a quorum is present
shall
be the act of such committee.
Section
26. Organization. At every meeting of the
directors, the Chairman of the Board of Directors, or, if a Chairman has
not
been appointed or is absent, the President, or if the President is absent,
the
most senior Vice President, or, in the absence of any such officer, a chairman
of the meeting chosen by a majority of the directors present, shall preside
over
the meeting. The Secretary, or in his absence, an Assistant Secretary
directed to do so by the President, shall act as secretary of the
meeting.
ARTICLE
V
OFFICERS
Section
27. Officers
Designated. The officers of the corporation shall include, if
and when designated by the Board of Directors, the Chairman of the Board
of
Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer, the Treasurer,
the
Controller, all of whom shall be elected at the annual organizational meeting
of
the Board of Directors. The Board of Directors may also appoint one
or more Assistant Secretaries, Assistant Treasurers, Assistant Controllers
and
such other officers and agents with such powers and duties as it shall
deem
necessary. The Board of Directors may assign such additional titles
to one or more of the officers as it shall deem appropriate. Any one
person may hold any number of offices of the corporation at any one time
unless
specifically prohibited therefrom by law. The salaries and other
compensation of the officers of the corporation shall be fixed by or in
the
manner designated by the Board of Directors.
Section
28. Tenure and
Duties of Officers.
(a)
General. All officers shall hold office at the pleasure of the Board of
Directors and until their successors shall have been duly elected and qualified,
unless sooner removed. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors. If the
office of
any officer becomes vacant for any reason, the vacancy may be filled by
the
Board of Directors.
(b)
Duties of Chairman of the Board of Directors. The Chairman of the Board
of
Directors, when present, shall preside at all meetings of the stockholders
and
the Board of Directors. The Chairman of the Board of Directors shall perform
other duties commonly incident to his office and shall also perform such
other
duties and have such other powers as the Board of Directors shall designate
from
time to time. If there is no President, then the Chairman of the Board
of
Directors shall also serve as the Chief Executive Officer of the corporation
and
shall have the powers and duties prescribed in paragraph (c) of this Section
28.
(c)
Duties of President. The President shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors, unless the
Chairman
of the Board of Directors has been appointed and is present. Unless some
other
officer has been elected Chief Executive Officer of the corporation, the
President shall be the chief executive officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation.
The
President shall perform other duties commonly incident to his office and
shall
also perform such other duties and have such other powers as the Board
of
Directors shall designate from time to time.
(d)
Duties of Vice Presidents. The Vice Presidents may assume and perform the
duties
of the President in the absence or disability of the President or whenever
the
office of President is vacant. The Vice Presidents shall perform other
duties
commonly incident to their office and shall also perform such other duties
and
have such other powers as the Board of Directors or the President shall
designate from time to time.
(e)
Duties of Secretary. The Secretary shall attend all meetings of the stockholders
and of the Board of Directors and shall record all acts and proceedings
thereof
in the minute book of the corporation. The Secretary shall give notice
in
conformity with these Bylaws of all meetings of the stockholders and of
all
meetings of the Board of Directors and any committee thereof requiring
notice.
The Secretary shall perform all other duties given him in these Bylaws
and other
duties commonly incident to his office and shall also perform such other
duties
and have such other powers as the Board of Directors shall designate from
time
to time. The President may direct any Assistant Secretary to assume and
perform
the duties of the Secretary in the absence or disability of the Secretary,
and
each Assistant Secretary shall perform other duties commonly incident to
his
office and shall also perform such other duties and have such other powers
as
the Board of Directors or the President shall designate from time to
time.
(f)
Duties of Chief Financial Officer. The Chief Financial Officer shall keep
or
cause to be kept the books of account of the corporation in a thorough
and
proper manner and shall render statements of the financial affairs of the
corporation in such form and as often as required by the Board of Directors
or
the President. The Chief Financial Officer, subject to the order of the
Board
of
Directors,
shall have the custody of all funds and securities of the corporation.
The Chief
Financial Officer shall perform other duties commonly incident to his office
and
shall also perform such other duties and have such other powers as the
Board of
Directors or the President shall designate from time to time. The President
may
direct the Treasurer or any Assistant Treasurer, or the Controller or any
Assistant Controller to assume and perform the duties of the Chief Financial
Officer in the absence or disability of the Chief Financial Officer, and
each
Treasurer and Assistant Treasurer and each Controller and Assistant Controller
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
Section
29. Delegation of
Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officer or agent,
notwithstanding any provision hereof.
Section
30. Resignations. Any officer may resign at any
time by giving written notice to the Board of Directors or to the President
or
to the Secretary. Any such resignation shall be effective when
received by the person or persons to whom such notice is given, unless
a later
time is specified therein, in which event the resignation shall become
effective
at such later time. Unless otherwise specified in such notice, the
acceptance of any such resignation shall not be necessary to make it
effective. Any resignation shall be without prejudice to the rights,
if any, of the corporation under any contract with the resigning
officer.
Section
31. Removal. Any officer may be removed from office
at any time, either with or without cause, by the affirmative vote of a
majority
of the directors in office at the time, or by the unanimous written consent
of
the directors in office at the time, or by any committee or superior officers
upon whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE
VI
EXECUTION
OF CORPORATE INSTRUMENTS AND VOTING
OF
SECURITIES OWNED BY THE CORPORATION
Section
32. Execution of
Corporate Instrument. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf
of
the corporation, except where otherwise provided by law or these Bylaws,
and
such execution or signature shall be binding upon the corporation.
Unless
otherwise specifically
determined by the Board of Directors or otherwise required by law, promissory
notes, deeds of trust, mortgages and other evidences of indebtedness of
the
corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the corporation,
shall be executed, signed or endorsed by the Chairman of the Board of Directors,
or the President or any Vice President, and by the Secretary or Treasurer
or any
Assistant Secretary or Assistant Treasurer. All other instruments and
documents
requiting
the corporate signature, but not requiring the corporate seal, may be executed
as aforesaid or in such other manner as may be directed by the Board of
Directors.
All
checks and drafts drawn on banks or
other depositaries on funds to the credit of the corporation or in special
accounts of the corporation shall be signed by such person .or persons
as the
Board of Directors shall authorize so to do.
Unless
authorized or ratified by the
Board of Directors or within the agency power of an officer, no officer,
agent
or employee shall have any power or authority to bind the corporation by
any
contract or engagement or to pledge its credit or to render it liable for
any
purpose or for any amount.
Section
33. Voting of
Securities Owned by the Corporation. All stock and other
securities of other corporations owned or held by the corporation for itself,
or
for other parties in any capacity, shall be voted, and all proxies with
respect
thereto shall be executed, by the person authorized so to do by resolution
of
the Board of Directors, or, in the absence of such authorization, by the
Chairman of the Board of Directors, the Chief Executive Officer, the President,
or any Vice President.
ARTICLE
VII
SHARES
OF STOCK
Section
34. Form and
Execution of Certificates. Certificates for the shares of
stock of the corporation shall be in such form as is consistent with the
Articles of Incorporation and applicable law. Every holder of stock
in the corporation shall be entitled to have a certificate signed by or
in the
name of the corporation by the Chairman of the Board of Directors, or the
President or any Vice President and by the Treasurer or Assistant Treasurer
or
the Secretary or Assistant Secretary, certifying the number of shares owned
by
him in the corporation. Any or all of the signatures on the
certificate may be facsimiles. In case any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed
upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued with the same effect
as if
he were such officer, transfer agent, or registrar at the date of
issue. Each certificate shall state upon the face or back thereof, in
full or in summary, all of the powers, designations, preferences, and rights,
and the limitations or restrictions of the shares authorized to be issued
or
shall, except as otherwise required by law, set forth on the face or back
a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional, or other special rights of each class of stock
or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or
rights. Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner
thereof
a written notice containing the information required to be set forth or
stated
on certificates pursuant to this section or otherwise required by law or
with
respect to this section a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative participating, optional or other special rights of each class
of
stock or series thereof and the qualifications, limitations or restrictions
of
such preferences
and/or
rights. Except as otherwise expressly provided by law, the rights and
obligations of the holders of certificates representing stock of the same
class
and series shall be identical.
Section
35. Lost
Certificates. A new certificate or certificates shall be
issued in place of any certificate or certificates theretofore issued by
the
corporation alleged to have been lost, stolen, or destroyed, upon the making
of
an affidavit of that fact by the person claiming the certificate of stock
to be
lost, stolen, or destroyed. The corporation may require, as a
condition precedent to the issuance of a new certificate or certificates,
the
owner of such lost, stolen, or destroyed certificate or certificates, or
his
legal representative, to advertise the same in such manner as it shall
require
or to give the corporation a surety bond in such form and amount as it
may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen, or
destroyed.
Section
36. Transfers.
(a)
Transfers of record of shares of stock of the corporation shall be made
only
upon its books by the holders thereof, in person or by attorney duly authorized,
and upon the surrender of a properly endorsed certificate or certificates
for a
like number of shares.
(b)
The corporation shall have power to enter into and perform any agreement
with
any number of stockholders of any one or more classes of stock of the
corporation to restrict the transfer of shares of stock of the corporation
of
any one or more classes owned by such stockholders in any manner not prohibited
by the General Corporation Law of Nevada.
Section
37. Fixing Record
Dates.
(a)
In order that the corporation may determine the stockholders entitled to
notice
of or to vote at any meeting of stockholders or any adjournment thereof,
the
Board of Directors may fix, in advance, a record date, which record date
shall
not precede the date upon which the resolution fixing the record date is
adopted
by the Board of Directors, and which record date shall not be more than
sixty
(60) nor less than ten (10) days before the date of such meeting. If no
record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall
be at the close of business on the day next preceding the day on which
notice is
given, or if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders
shall
apply to any adjournment of the meeting; provided, however, that the Board
of
Directors may fix a new record date for the adjourned meeting.
(b)
In order that the corporation may determine the stockholders entitled to
receive
payment of any dividend or other distribution or allotment of any rights
or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful
action,
the Board of Directors may fix, in advance, a record date, which record
date
shall not precede the date upon which the resolution fixing the record
date is
adopted, and which record date shall be not more than sixty (60) days prior
to
such action. If no record date is filed, the record date for determining
stockholders for any such purpose shall be at the close of business on
the day
on which the Board of Directors adopts the resolution relating
thereto.
Section
38. Registered
Stockholders. The corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of
shares
to receive dividends, and to vote as such owner, and shall not be bound
to
recognize any equitable or other claim to or interest in such share or
shares on
the part of any other person whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE
VIII
OTHER
SECURITIES OF THE CORPORATION
Section
39. Execution of
Other Securities. All bonds, debentures and other corporate
securities of the corporation, other than stock certificates (covered in
Section
34), may be signed by the Chairman of the Board of Directors, the President
or
any Vice President, or such other person as may be authorized by the Board
of
Directors, and the corporate seal impressed thereon or a facsimile of such
seal
imprinted thereon and attested by the signature of the Secretary or an
Assistant
Secretary, or the Chief Financial Officer or Treasurer or an Assistant
Treasurer; provided, however, that where any such bond, debenture or other
corporate security shall be authenticated by the manual signature, or where
permissible facsimile signature, of a trustee under an indenture pursuant
to
which such bond, debenture or other corporate security shall be issued,
the
signatures of the persons signing and attesting the corporate seal on such
bond,
debenture or other corporate security may be the imprinted facsimile of
the
signatures of such persons. Interest coupons appertaining to any such
bond, debenture or other corporate security, authenticated by a trustee
as
aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of
the
corporation or such other person as may be authorized by the Board of Directors,
or bear imprinted thereon the facsimile signature of such person. In
case any officer who shall have signed or attested any bond, debenture
or other
corporate security, or whose facsimile signature shall appear thereon or
on any
such interest coupon, shall have ceased to be such officer before the bond,
debenture or other corporate security so signed or attested shall have
been
delivered, such bond, debenture or other corporate security nevertheless
may be
adopted by the corporation and issued and delivered as though the person
who
signed the same or whose facsimile signature shall have been used thereon
had
not ceased to be such officer of the corporation.
ARTICLE
IX
DIVIDENDS
Section
40. Declaration of
Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the Articles of Incorporation,
if any,
may be declared by the Board of Directors pursuant to law at any regular
or
special meeting. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Articles
of
Incorporation.
Section
41. Dividend
Reserve. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for dividends such
sum
or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet
contingencies,
or for equalizing dividends, or for repairing or maintaining any property
of the
corporation, or for such other purpose as the Board of Directors shall
think
conducive to the interests of the corporation, and the Board of Directors
may
modify or abolish any such reserve in the manner in which it was
created.
ARTICLE
X
FISCAL
YEAR
Section
42. Fiscal
Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
ARTICLE
XI
INDEMNIFICATION
Section
43. Indemnification
of Directors, Executive Officers, Other Officers, Employees and Other
Agents.
(a)
Directors Officers. The corporation shall indemnify its directors and officers
to the fullest extent not prohibited by the Nevada General Corporation
Law;
provided, however, that the corporation may modify the extent of such
indemnification by individual contracts with its directors and officers;
and,
provided, further, that the corporation shall not be required to indemnify
any
director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the corporation, (iii) such indemnification is provided by the corporation,
in its sole discretion, pursuant to the powers vested in the corporation
under
the Nevada General Corporation Law or (iv) such indemnification is required
to
be made under subsection (d).
(b)
Employees and Other Agents. The corporation shall have power to indemnify
its
employees and other agents as set forth in the Nevada General Corporation
Law.
(c)
Expense. The corporation shall advance to any person who was or is a party
or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by
reason of the fact that he is or was a director or officer, of the corporation,
or is or was serving at the request of the corporation as a director or
executive officer of another corporation, partnership, joint venture, trust
or
other enterprise, prior to the final disposition of the proceeding, promptly
following request therefor, all expenses incurred by any director or officer
in
connection with such proceeding upon receipt of an undertaking by or on
behalf
of such person to repay said mounts if it should be determined ultimately
that
such person is not entitled to be indemnified under this Bylaw or
otherwise.
Notwithstanding
the foregoing, unless
otherwise determined pursuant to paragraph (e) of this Bylaw, no advance
shall
be made by the corporation to an officer of the corporation (except by
reason of
the fact that such officer is or was a director of the corporation in which
event this paragraph shall not apply) in any action, suit or proceeding,
whether
civil, criminal, administrative or investigative, if a determination is
reasonably and promptly made (i) by the Board of Directors by a majority
vote of
a quorum consisting of directors who were not parties to the proceeding,
or (ii)
if such quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, that the facts known to the decision-making party at the time
such
determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be
in or
not opposed to the best interests of the corporation.
(d) Enforcement. Without
the necessity of entering into an express contract, all rights to
indemnification and advances to directors and officers under this Bylaw
shall be
deemed to be contractual rights and be effective to the same extent and
as if
provided for in a contract between the corporation and the director or
officer. Any right to indemnification or advances granted by this
Bylaw to a director or officer shall be enforceable by or on behalf of
the
person holding such right in any court of competent jurisdiction if (i)
the
claim for indemnification or advances is denied, in whole or in part, or
(ii) no
disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in
whole or in part, shall be entitled to be paid also the expense of prosecuting
his claim. In connection with any claim for indemnification, the
corporation shall be entitled to raise as a defense to any such action
that the
claimant has not met the standard of conduct that make it permissible under
the
Nevada General Corporation Law for the corporation to indemnify the claimant
for
the amount claimed. In connection with any claim by an officer of the
corporation (except in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such officer
is or
was a director of the corporation) for advances, the corporation shall
be
entitled to raise a defense as to any such action clear and convincing
evidence
that such person acted in bad faith or in a manner that such person did
not
believe to be in or not opposed in the best interests of the corporation,
or
with respect to any criminal action or proceeding that such person acted
without
reasonable cause to believe that his conduct was lawful. Neither the
failure of the corporation (including its Board of Directors, independent
legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper
in
the circumstances because he has met the applicable standard of conduct
set
forth in the Nevada General Corporation Law, nor an actual determination
by the
corporation (including its Board of Directors, independent legal counsel
or its
stockholders) that the claimant has not met such applicable standard of
conduct,
shall be a defense to the action or create a presumption that claimant
has not
met the applicable standard of conduct. In any suit brought by a
director or officer to enforce a right to indemnification or to an advancement
of expenses hereunder, the burden of proving that the director or officer
is not
entitled to be indemnified, or to such advancement of expenses, under this
Article XI or otherwise shall be on the corporation.
(e) Non-Exclusivity
of
Rights. The rights conferred on any person by this Bylaw shall not be
exclusive of any other right which such person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested
directors
or otherwise, both as to action in his official capacity and as to action
in
another capacity while holding office. The corporation is
specifically authorized to enter into individual contracts with any or
all of
its directors, officers, employees or agents respecting indemnification
and
advances, to the fullest extent not prohibited by the Nevada General Corporation
Law.
(f) Survival
of
Rights. The rights conferred on any person by this Bylaw shall
continue as to a person who has ceased to be a director, officer, employee
or
other agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) Insurance. To
the fullest extent permitted by the Nevada General Corporation Law, the
corporation, upon approval by the Board of Directors, may purchase insurance
on
behalf of any person required or permitted to be indemnified pursuant to
this
Bylaw.
(h) Amendments. Any
repeal or modification of this Bylaw shall only be prospective and shall
not
affect the rights under this Bylaw in effect at the time of the alleged
occurrence of any action or omission to act that is the cause of any proceeding
against any agent of the corporation.
(i) Saving
Clause. If this Bylaw or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the corporation
shall
nevertheless indemnify each director and officer to the full extent not
prohibited by any applicable portion of this Bylaw that shall not have
been
invalidated, or by any other applicable law.
(j) Certain
Definitions. For the purposes of this Bylaw, the following
definitions shall apply:
(i)
The term "proceeding" shall be broadly construed and shall include, without
limitation, the investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of testimony in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative.
(ii)
The term "expenses" shall be broadly construed and shall include, without
limitation, court costs, attorneys' fees, witness fees, fines, amounts
paid in
settlement or judgment and any other costs and expenses of any nature or
kind
incurred in connection with any proceeding.
(iii)
The term the "corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of
a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify
its
directors, officers, and employees or agents, so that any person who is
or was a
director, officer, employee or agent of such constituent corporation, or
is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent or another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Bylaw with respect to the resulting or surviving corporation as
he would
have with respect to such constituent corporation if its separate existence
had
continued.
(iv)
References to a "director," "executive officer," "officer," "employee,"
or
"agent" of the corporation shall include, without limitation, situations
where
such person is serving at
the
request of the corporation as, respectively, a director, executive officer,
officer, employee, trustee or agent of another corporation, partnership,
joint
venture, trust or other enterprise.
(v)
References to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person
with
respect to an employee benefit plan; and references to "serving at the
request
of the corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services
by,
such director, officer, employee, or agent with respect to an employee
benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted
in a
manner "not opposed to the best interests of the corporation" as referred
to in
this Bylaw.
ARTICLE
XII
NOTICES
Section
44. Notices.
(a)
Notice to Stockholders. Whenever, under any provisions of these Bylaws,
notice
is required to be given to any stockholder, it shall be given in writing,
timely
and duly deposited in the United States mail, postage prepaid, and addressed
to
his last known post office address as shown by the stock record of the
corporation or its transfer agent.
(b)
Notice to directors. Any notice required to be given to any director may
be
given by the method stated in subsection (a), or by facsimile, telex or
telegram, except that such notice other than one which is delivered personally
shall be sent to such address as such director shall have filed in writing
with
the Secretary, or, in the absence of such filing, to the last known post
office
address of such director.
(c)
Affidavit of Mailing. An affidavit of mailing, executed by a duly authorized
and
competent employee of the corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and address
or the
names and addresses of the stockholder or stockholders, or director or
directors, to whom any such notice or notices was or were given, and the
time
and method of giving the same, shall in the absence of fraud, be prima
facie
evidence of the facts therein contained.
(d)
Time Notices Deemed Given. All notices given by mail, as above provided,
shall
be deemed to have been given as at the time of mailing, and all notices
given by
facsimile, telex or telegram shall be deemed to have been given as of the
sending time recorded at time of transmission.
(e)
Methods of Notice. It shall not be necessary that the same method of giving
notice be employed in respect of all directors, but one permissible method
may
be employed in respect of any one or more, and any other permissible method
or
methods may be employed in respect of any other or others.
(f)
Failure to Receive Notice. The period or limitation of time within which
any
stockholder may exercise any option or right, or enjoy any privilege or
benefit,
or be required to act, or within which any director may exercise any power
or
right, or enjoy any privilege, pursuant to any notice sent him ill the
manner
above provided, shall not be affected or extended in any manner by the
failure
of such stockholder or such director to receive such notice.
(g)
Notice to Person with Whom Communication Is Unlawful. Whenever notice is
required to be given, under any provision of law or of the Articles of
Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall
not be
require and there shall be no duty to apply to any governmental authority
or
agency for a license or permit to give such notice to such person. Any
action or
meeting which shall be taken or held without notice to any such person
with whom
communication is unlawful shall have the same force and effect as if such
notice
had been duly given. In the event that the action taken by the corporation
is
such as to require the filing of a certificate under any provision of the
Nevada
General Corporation Law, the certificate shall state, if such is the fact
and if
notice is required, that notice was given to all persons entitled to receive
notice except such persons with whom communication is unlawful.
(h)
Notice to Person with Undeliverable Address. Whenever notice is required
to be
given, under any provision of law or the Articles of Incorporation or Bylaws
of
the corporation, to any stockholder to whom (i) notice of two consecutive
annual
meetings, and all notices of meetings or of the taking of action by written
consent without a meeting to such person during the period between such
two
consecutive annual meetings, or (ii) all, and at least two, payments (if
sent by
first class mail) of dividends or interest on securities during a twelve-month
period, have been mailed addressed to such person at his address as shown
on the
records of the corporation and have been returned undeliverable, the giving
of
such notice to such person shall not be required. Any action or meeting
which
shall be taken or held without notice to such person shall have the same
force
and effect as if such notice had been duly given. If any such person shall
deliver to the corporation a written notice setting forth his then current
address, the requirement that notice be given to such person shall be
reinstated. In the event that the action taken by the corporation is such
as to
require the filing of a certificate under any provision of the Nevada General
Corporation Law, the certificate need not state that notice was not given
to
persons to whom notice was not required to be given pursuant to this
paragraph.
ARTICLE
XII
AMENDMENTS
Section
45. Amendments.
The
Board of Directors shall have the
sole power to adopt, amend, or repeal Bylaws as set forth in the Articles
of
Incorporation.
ARTICLE
XIV
LOANS
TO OFFICERS
Section
46. Loans to
Officers. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiaries, including any officer or employee who
is a
Director of the corporation or its subsidiaries, whenever, in the judgment
of
the Board of Directors, such loan, guarantee or assistance may reasonably
be
expected to benefit the corporation. The loan, guarantee or other
assistance may be with or without interest and may be unsecured, or secured
in
such manner as the Board of Directors shall approve, including, without
limitation, a pledge of shares of stock of the corporation. Nothing
in these Bylaws shall be deemed to deny, limit or restrict the powers of
guaranty or warranty of the corporation at common law or under any
statute.
ARTICLE
XV
BOARD
OF ADVISORS
Section
47.
Board of
Advisors. The Board of Directors, in its discretion, may
establish a Board of Advisors consisting of individuals who may or may
not be
stockholders or directors of the corporation. The purpose of the
Board of Advisors would be to advise the officers and directors of the
corporation with respect to such matters as such officers and directors
shall
choose, and any other such matters which the members of such Board of Advisors
deem appropriate in furtherance of the best interest of the
corporation. The Board of Advisors shall meet on such basis as the
members thereof may determine. The Board of Directors may eliminate
the Board of Advisors at any time. No member of the Board of
Advisors, nor the Board of Advisors itself, shall have any authority within
the
corporation or any decision making power and shall be merely advisory in
nature. Unless the Board of Directors determines another method of
appointment, the President shall recommend possible members to the Board
of
Directors, who shall approve or reject such appointments.
Declared
and certified as the Bylaws of Innovative Consumer Products, Inc. on June
30,
2006.
Signature
of Officer:
|
/s/Xxxx
Xxxxx Xxxxxx
|
Name
of Officer:
|
Xxxx
Xxxxx Xxxxxx
|
Position
of Officer:
|
President,
Secretary-Treasurer, Chief Executive Officer, and Chief Financial
Officer
|